J-S74006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALLEN NEAL                                 :
                                               :
                       Appellant               :    No. 1844 EDA 2019

               Appeal from the PCRA Order Entered June 5, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0000225-2015


BEFORE:       BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JANUARY 31, 2020

        Appellant, Allen Neal, appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

        The   facts   underlying      Appellant’s   conviction,   taken   from   our

memorandum opinion filed during his direct appeal, are as follows:

        [Appellant] and the victim, Karina Zelaya-Betancourt, had been
        best friends for approximately six or seven years prior to this
        incident, which occurred in the early morning hours on December
        14, 2014. Following a night out, [Appellant], the victim, and
        several friends went to the victim’s apartment to continue the
        party. As the party died down, most of the guests left until only
        [Appellant], the victim, and the victim’s friend, Amanda Belen,
        remained. The victim went to sleep in her daughter’s bedroom
        because Ms. Belen had already gone to sleep in her room.
        [Appellant], after checking in on the victim, went to sleep on the
        living room couch.

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S74006-19


     At approximately 8:00 a.m., the victim was awoken by a “pain
     anally and I saw [Appellant] over me and I just told him to get off
     of me.” She testified that she had been sleeping on her stomach
     and that her pajama pants and underwear had been pulled down.
     [Appellant] was mostly clothed but the victim “saw him like tuck
     himself back in before he got off of me” and “walked to the living
     room.” On cross-examination, the victim conceded that she did
     not actually see [Appellant]’s penis.

     Following the assault, the victim felt wetness on her buttocks area.
     She went into the bathroom, wiped the area with baby wipes, and
     discovered that she was bleeding from her anus. Some of the
     bloody wipes were flushed down the toilet, but several others were
     thrown into the trashcan….

     After wiping herself off, the victim went into her bedroom, where
     Amanda Belen had been sleeping until she was awoken after
     hearing the victim yell at [Appellant]. The victim then called
     another friend, who lived close by and had been present the night
     before, to escort [Appellant] out of the apartment. [Appellant]
     complied without incident.

     Subsequently, the victim was taken to Pocono Medical Center and
     the police were called. At the hospital, the victim was examined
     by Rose Reyes, R.N., a Sexual Assault Nurse Examiner (SANE).
     During the examination, the victim provided a statement to Nurse
     Reyes and Detective Robert Miller of the Pocono Mountain
     Regional Police Department (PMRPD).

     Nurse Reyes, who qualified as an expert SANE nurse, testified
     that, at the beginning of the examination, the victim was crying
     and recounted the facts summarized above. During the interview
     portion of the examination, the victim completed a questionnaire,
     which asked various questions, including one central to this
     appeal: whether the victim had consensual sex in the previous five
     days. On the questionnaire, the victim responded that she had
     not….

     During her physical examination of the victim, Nurse Reyes
     discovered “tearing in the anal area. It was mostly toward the 5
     and 8 o’clock area. There was tiny little skin tears with a little tiny
     bit of bleeding more so to the 5:00 and 6:00 area.” Nurse Reyes
     opined that these tears were consistent with trauma. Nurse Reyes
     took swabs of the victim’s mouth, anus, and vagina, which were
     provided to the police.


                                      -2-
J-S74006-19



Commonwealth v. Neal, No. 2462 EDA 2016, unpublished memorandum at

1-3 (Pa. Super. filed Sept. 11, 2017) (footnote omitted) (quoting from the

trial court’s Pa.R.A.P. 1925(a) Opinion, 10/5/16, at 2-4). Additionally,

      [the victim] testified and was cross-examined about the
      statement she gave at the hospital; she confirmed that she had
      checked a box to indicate that she had not had consensual sex in
      the five days preceding the incident. The Commonwealth’s DNA
      expert later testified that the DNA of three individuals—Appellant,
      [the victim], and an unidentified person—was present on the
      wipes. Further, analysis of [the victim]’s rectal swab did not
      reveal Appellant’s DNA but did reveal male DNA that was not
      Appellant’s.

Id. at 4 (citations omitted).

      Based on these facts, the Commonwealth charged Appellant with

numerous sexual offenses. Following a trial, which concluded on April 20,

2016, a jury convicted Appellant of two counts of indecent assault and

acquitted him of all the remaining charges. On July 11, 2016, the trial court

sentenced Appellant to 1-5 years’ incarceration, and to lifetime registration

requirements pursuant to the Sex Offender Registration and Notification Act,

42 Pa.C.S. §§ 9799.10–9799.41 (“SORNA”). Appellant filed a timely notice of

appeal on August 4, 2016.

      On direct appeal, this Court vacated “the lifetime registration portion of

Appellant’s sentence and remand[ed] for imposition of a twenty-five year

registration requirement under SORNA[,]” but otherwise affirmed Appellant’s

judgment of sentence.     Id. at 12.   Our Supreme Court denied Appellant’s

petition for allowance of appeal. Commonwealth v. Neal, 182 A.3d 447 (Pa.

2018).

                                       -3-
J-S74006-19



      Appellant subsequently filed a pro se PCRA petition on July 26, 2018,

and an amended petition was filed on his behalf on September 25, 2018, after

the appointment of counsel. The PCRA court conducted an evidentiary hearing

on November 5, 2018. On June 6, 2019, the court issued an opinion and order

(“PCO”) denying Appellant’s PCRA petition.

      Appellant filed a timely notice of appeal, and a timely, court-ordered

Rule 1925(b) statement. The PCRA court issued its Rule 1925(a) opinion on

July 15, 2019, which relied entirely on the PCO. Appellant now presents the

following, inter-related questions for our review:

      Was trial counsel ineffective for choosing to pursue the theory that
      the alleged victim lied, while failing to pursue the theory that the
      victim had a motive to fabricate the allegations, when there was
      strong evidence that the victim had a motive to fabricate?

      Was [trial] counsel ineffective for failing to file a pre-trial motion
      under the Rape Shield Law with a specific proffer of how it related
      to [A]ppellant’s defense?

Appellant’s Brief at 4.

      After careful consideration of the record, the parties’ briefs, and the well-

reasoned opinion by the Honorable Jonathan Mark of the Court of

Commonwealth Pleas of Monroe County, we affirm on the basis set forth in

Judge Mark’s opinion.      See PCO at 12-13 (concluding that the at-issue

evidence was not admissible, even if trial counsel had not procedurally

defaulted by failing to file a pre-trial motion under the Rape Shield Law; thus,

trial counsel was not ineffective).

      Order affirmed.



                                      -4-
J-S74006-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/20




                          -5-
                                                                 Circulated 01/24/2020 01 :57 P
                                                               68_0pinion and Order.pd

                COURT OF COMMON PLEAS OF MONROE COUNTY
                         FORTY-THIRD JUDICIAL DISTRICT
                       COMMONWEALTH OF PENNSYLVANIA



COMMONWEALTH OF PENNSYLVANIA                          NO. 225 CRIMINAL 2015

      v.
ALLEN NEAL,
                                                        PCRA
       DEFENDANT


                                         OPINION

       This case is before the Court on the petition of defendant Allen Neal

("Defendant") for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A.

Section 9541 et. seq., alleging that he received ineffective assistance of counsel. For

the reasons that follow, we will deny the petition.

                                     BACKGROUND

       The pre-PCRA history of this case is recited in the Rule 1025(a) opinion

("Appeal Opinion") we issued on October 4, 2016 in response to Defendant's direct

appeal and the opinion of the Superior Court ("Superior Court Opinion"), filed on

September 11, 2017 at 2462 EDA 2016, that affirmed Defendant's jail sentence but

remanded for an adjustment to his Megan's Law classification based on intervening

changes in the law. We incorporate both opinions (collectively the "Prior Opinions")

into this opinion by reference. In summary:

       Defendant was arrested and charged with Rape, Involuntary Deviate Sexual

Intercourse, Sexual Assault, two counts of Aggravated Indecent Assault, and two

counts of Indecent Assault. On April 20, 2016, after a three-day trial, a jury convicted
                                                                68_0pinion and Order.pd

Defendant of Indecent Assault of an unconscious person and Indecent Assault without

consent. Defendant was acquitted of the other charges.

       On July 11, 2016, Defendant was sentenced to 12 to 60 months' incarceration

and, under the law applicable at the time, was classified as a Tier 111 sexual offender.

       On August 4, 2016, Defendant filed a direct appeal, alleging that we erred by: 1)

"denying him the ability" to recall the victim on his side of the case; and 2) classifying

him as a Tier Ill sexual offender under the Sexual Offender Registration and

Notification Act (SORNA), 42 Pa. C.S.A. §9799.10 et. seq. The Superior Court

concluded that his first assignment of error merited no relief. With respect to the

second, based on the referenced change in the law, the Superior Court vacated the

Megan's Law classification and remanded for reclassification and imposition of a

twenty-five year registration requirement under SORNA. Id. at 12. Defendant then filed

a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. The petition

was denied on March 13, 2018.

       On July 26, 2018, Defendant filed a timely pro se PCRA petition. The Monroe

County Public Defender's Office was appointed to represent Defendant. An amended

petition was filed on September 25, 2018. A hearing was held on November 5, 2018. At

the end of the hearing, the parties were directed to file briefs. Both briefs have been

filed and the matter is ripe for disposition.


                                        DISCUSSION

       1.     The Applicable Law

       PCRA petitions must meet statutory timeliness jurisdictional requirements.

Specifically, unless a legislatively-recognized exception applies, a PCRA petition must


                                                2
                                                               68_0pinion and Order.pd

be filed within one year of the date the defendant's judgment of sentence became final.

42 Pa.C.S.A. § 9545(b)(1). See Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa.

Super. 2013).

      In addition to timeliness requirements, a petitioner must meet the eligibility

requirements of the PCRA. 42 Pa. C.S.A.§ 9543. Under Section 9545, PCRA relief is

not available for alleged errors that have been "previously litigated" or waived. 42

Pa.C.S.A. § 9543(a)(3); Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007)

Accordingly, "[t]o be entitled to PCRA relief, a petitioner must plead and prove, inter

alia, that the allegation of error has not been previously litigated or waived."

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (en bane), appeal

denied, 917 A.2d 844 (Pa. 2007). An issue has been previously litigated if "the highest

appellate court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue." 42 Pa.C.S.A. § 9544(a)(2); Commonwealth v.

Keaton, 45 A.3d 1050, 1060 (Pa. 2012). An issue is waived if it could have been

raised prior to the filing of the PCRA petition. but was not. Commonwealth v. Williams,

900 A.2d 906 (Pa. Super. 2006) (en bane); Commonwealth v. Berry, supra.

      In more expanded terms, the previously litigated provision of Section 9543(a)

             prevents the relitigation of the same legal ground under
             alternative theories or allegations. Commonwealth v.
             Collins, 585 Pa. 45, 56, 888 A.2d 564, 570 (2005);
             Commonwealth          v.    Derk,   913 A.2d       875,    882
             (Pa.Super.2006). Additionally,     an issue is not  cognizable
             under the PCRA where the petitioner simply attempts to
             relitigate, without couching in terms of ineffective
             assistance, a claim that has already been deemed
             reviewed on direct appeal. See Commonwealth v. Jones,
             590 Pa. 202, 217, n. 10, 912 A.2d 268, 277, n. 10 (2006). If
             the claims upon which a petitioner seeks relief were
             previously litigated. then our inquiry ends and the petitioner
             is not entitled to relief. 42 Pa.C.S.A. § 9543(a)(3). An issue

                                           3
                                                                    68_0pinion and Order.pd

               is considered 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 post-conviction proceeding. 42
               Pa.C.S.A. § 9544(b); Commonwealth v. Williams, 900 A.2d
               906, 908-09 (Pa.Super.2006) (en bane).

Fowler, 930 A.2d at 594. See also Commonwealth v. Ligons, 971 A.2d 1125 (Pa.

2009).

         Substantively, Defendant's ineffective assistance of counsel claim implicates

Strickland v. Washington, 466 U.S. 668 (1984), as adopted in Pennsylvania by

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), which requires a defendant

alleging ineffectiveness to demonstrate that he was prejudiced by an act or omission of

his attorney. In cases where the Strickland/Pierce test applies, the analysis begins with

               the presumption that counsel rendered effective assistance.
               Commonwealth v. Basemore, 560 Pa. 258, 277 n. 10, 744
               A.2d 717, 728 n. 10 (2000). To obtain relief on a claim of
               ineffective assistance of counsel, a Defendant must rebut
               that presumption and demonstrate that counsel's
               performance was deficient, and that such performance
               prejudiced him. Strickland v. Washington, 466 U.S. 668,
               687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In our
               Commonwealth, we have rearticulated the Strickland Court's
               performance and prejudice inquiry as a three-prong test.
               Specifically, a Defendant must show: (1) the underlying
               claim is of arguable merit; (2) no reasonable basis existed
               for counsel's action or inaction; and (3) counsel's error
               caused prejudice such that there is a reasonable probability
               that the result of the proceeding would have been different
               absent such error. Commonwealth v. Pierce, 515 Pa. 153,
               158-59, 527 A.2d 973, 975 (1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011). See Commonwealth v.

Tedford, 960 A.2d 1 (Pa. 2008); Commonwealth v. Dennis, 950 A.2d 945, 953 (Pa.

2008); Commonwealth v. Gwynn, 943 A.2d 940, 945 (Pa. 2008); Commonwealth v.

Mallory, 941 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 884 (2008). "Counsel is



                                               4
                                                                 68_0pinion and Order.pd

presumed to have been effective and the defendant has the burden of proving

otherwise." Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002).

      A corollary to the first element, counsel cannot be found ineffective for failing to

pursue a baseless or meritless claim. Commonwealth v. Roney, 79 A.3d 595, 604 (Pa.

2013); Commonwealth v. Washington, 927 A.2d 586, 603 (Pa. 2007); Commonwealth

v. Harvey, 812 A.2d 1190, 1199 (Pa. 2002). With regard to the second, the

             reasonable basis element, we do not question whether there
             were other more logical courses of action which counsel
             could have pursued; rather, we must examine whether
             counsel's decisions had          any   reasonable     basis."
             [Commonwealth v.] Hanible, [30 A.3d 426,] 439 [(Pa. 2011)]
             (citation omitted). We will conclude that counsel's strategy
             lacked a reasonable basis only if the Defendant proves that
             a foregone alternative "offered a potential for success
             substantially greater than the course actually pursued."
             [Commonwealth v.] Spotz, [18 A.3d 244] 260 [Pa. 2011]
             (citation omitted). To establish the third, the prejudice
             element, the Defendant must show that there is a
             reasonable probability that the outcome of the proceedings
             would have been different but for counsel's action or
             inaction. Id.

Roney, 79 A.3d at 604.

      Since a Defendant must prove all three prongs of the Strickland/Pierce test, if he

fails to prove any one of the prongs, the ineffectiveness claim may be dismissed on

that basis alone without the need to determine whether the other two prongs have

been met. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000). Similarly, because

claims of ineffective assistance of counsel are not self-proving, a Defendant cannot

prevail unless he properly develops the claim. Thus, when a Defendant fails to preperly

plead all three prongs, or, having done so, to develop the claim, the Defendant is not

entitled to relief and the court may find the claim waived for lack of development See

Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008).

                                            5
                                                               68_0pinion and Order.pd

      Additionally, trial counsel has broad discretion to determine the course of

defense tactics and strategy. See Commonwealth v. Fowler, 670 A.2d 153 (Pa. Super.

1996); Commonwealth v. Mizell, 425 A.2d 424 (Pa. 1981). 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. 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. To demonstrate prejudice, the Defendant must
              show 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. Colavita, 993 A.2d 874, 887 (Pa. 2010)(citations omitted). Further,

"[t]he length of time dedicated to client consultation affords no basis for inferring the

extent of trial preparation." Commonwealth v. Howard, 732 A.2d 1213, 1215 (Pa.

Super. 1999) (citing Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. 1997)).

Where a Defendant has not provided any evidence to support his allegation of

inadequate preparation and it is shown that counsel met with the Defendant prior to

trial, trial counsel cannot be deemed to be ineffective for lack of preparation without

sufficient proof. Id. Thus, a Defendant is not entitled to relief simply because he or she

did not like the strategy or because the strategy was unsuccessful. Commonwealth v.

Davis, 554 A.2d 104, 111 (Pa. Super. 1989).

       2.     Defendant's Ineffective Assistance of Counsel Claim Lacks Merit

       Defendant argues that trial counsel was ineffective for failing to file a motion

 under the Rape Shield Law, 18 Pa.C.S.A. § 3104, "so that the Court would have an

opportunity to balance defendant's interests in presenting a defense with the victim's
                                             6
                                                                  68_0pinion and Order.pd

right to privacy regarding prior sexual relations." (Defendant's Letter Brief, filed

December 28, 2018, p. 3 (unnumbered)). According to Defendant, "If the Motion had

been filed, it is likely that the evidence would have been admitted as it is relevant and

more probative than prejudicial" (Id. at 8) and, further, "if the jury had heard the entirety

of Mr. Neal's defense, they might have acquitted him of all charges." (Id. at 7). In more

expanded terms, Defendant argued at trial and reiterates in this collateral proceeding

that the jury should have been permitted to hear that he had seen the victim having

sex with another person the night before the incident that led to his conviction.

Defendant's theory was and remains that his victim had a jealous boyfriend and,

therefore, she had a motive to fabricate. In addition, Defendant believed and continues

to believe that the evidence was admissible to impeach the victim. Under all theories

advanced by Defendant, his ineffectiveness claim lacks merit.

       Initially, Defendant's ineffectiveness claim is nothing more than a repackaging

of the issues he presented to this Court during trial and later litigated in his direct

appeal. At trial, Defendant sought to introduce evidence regarding and to question the

victim about her alleged sexual encounter with a man the night before the incident. We

ruled that Defendant would not be permitted to do so, articulating several reasons why.

(N.T., 4/19/2016, pp.155 - 171. See N.T., 4/18/2016, pp. 237 - 240). Later, in the

Appeal Opinion we issued in response to Defendant's appeal, we highlighted and

amplified the reasoning expressed on the record and provided the law on which our

ruling was based (Opinion, filed October 5, 2016). Of significance, we stated:

              The Rape Shield Law provides, in pertinent part:

                        (a) General rule. -- Evidence of
                   specific instances of the alleged victim's
                   past sexual conduct, opinion evidence of

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                                                  68_ 0pinion and Order.pd

    the alleged victim's past sexual conduct,
    and reputation evidence of the alleged
    victim's past sexual conduct shall not be
    admissible in prosecutions under this
    chapter except evidence of the alleged
    victim's past sexual conduct with the
    defendant where consent of the alleged
    victim is at issue and such evidence is
    otherwise admissible pursuant to the rules
    of evidence.

           (b) Evidentiary proceedings. -- A
     defendant who proposes to offer evidence
     of the alleged victim's past sexual conduct
     pursuant to subsection (a) shall file a
     written motion and offer of proof at the time
     of trial. If, at the time of trial, the court
     determines that the motion and offer of
     proof are sufficient on their faces, the court
     shall order an in camera hearing and shall
     make findings on the record as to the
     relevance and admissibility of the proposed
     evidence pursuant to the standards set
     forth in subsection (a).

18 Pa.C.S.A. § 3104.

       The bar to evidence of a victim's past sexual conduct
is not absolute and is subject to certain statutory and
constitutional exceptions. The lone statutory exception,
included in the language of Section 3104(a), allows evidence
of the victim's past sexual conduct with the defendant when
consent of the victim is at issue. That exception is clearly not
applicable to this case. See Commonwealth v. Al/bum, 721
A.2d 363, 367 (Pa. Super. 1998).

      With respect to the constitutional exceptions, our
Supreme Court has held the law does not prohibit relevant
evidence that "directly negates the act of intercourse with
which a defendant is charged." Commonwealth v. Majorana,
470 A.2d 80, 84 (Pa. 1983). See also Commonwealth v.
Widmer, 667 A.2d 215, 216 (Pa. Super. 1995). The Rape
Shield Law may not be used to exclude relevant evidence
showing a witness' bias or attacking credibility.
Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super.
1985). "Evidence tending to directly exculpate the accused
by showing that the alleged victim is biased and thus has a
                               8
                                                   68_0pinion and Order.pd

motive to lie, fabricate, or seek retribution is admissible at
trial." Commonwealth v. Guy, 686 A.2d 397, 400 (Pa. Super.
1996). If the offer of proof only shows that others in addition
to the defendant had sexual contact with the victim, but does
not show how the evidence would exonerate the defendant,
evidence of prior sexual activity is inadmissible under the
Rape Shield Law. Commonwealth v. Fink, 791 A.2d 1235,
(Pa. Super. 2002); Commonwealth v. Durst, 559 A.2d 504
(Pa. 1989).

        In sexual assault cases, trial courts are frequently
called upon to interpret and apply the Rape Shield Law.
Rulings on the admissibility of evidence of the sexual history
of a sexual assault complainant will be reversed only where
there has been a clear abuse of discretion. Commonwealth
v. Al/bum, 721 A.2d 363, 366 (Pa. Super. 1998). An abuse of
discretion is not merely an error of judgment. Id. An abuse of
discretion occurs where the record shows that the trial court,
in reaching a conclusion, overrides or misapplies the law, or
exercises its judgment in a manifestly unreasonable manner
or as the result of partiality, prejudice, bias, or ill will. Id.

        In this case, we orally summarized our reasons for
issuing the challenged ruling on the record. (N.T. 4/19/2016,
pp.159-60 and 160-71). We incorporate our on-record
statements into this opinion by reference. For the most part,
the rationale we previously articulated suffices to address
Defendant's first assignment of error and to demonstrate that
our ruling was not an abuse of discretion. To what we said
before, we add the law cited above and the following:

       First, Defendant's assignment of error is inaccurate
and misleading. We did not, as the assignment implies,
preclude Defendant from recalling the victim. On the
contrary, our ruling was quite clear that Defendant would be
permitted to recall the victim, but that the subject matter
about which he would be permitted to inquire would be
limited in accordance with the Rape Shield Law. (N.T.
4/19/2016, pp.159-60).

       Second, Defendant's attempt to delve into areas
limited or precluded by the Rape Shield Law was
procedurally defective. Under Section 3104(b), Defendant
was required to file a written motion in addition to the offer of
proof. When Defendant made his oral motion at trial, we
indicated that this procedural prerequisite had not been met
(N.T. 4/19/2016, pp. 159-60). By itself, this failure is fatal to
                               9
                                                   68_0pinion and Order.pd

Defendant's claim. See Commonwealth v. Beltz, 829 A.2d
680, 684 (Pa. Super. 2003). This is especially true in this
case since Defendant and his attorney became aware of the
information needed to file the required motion - presence of
the DNA of an unknown male on the rectal swab, the victim's
answer on the SANE questionnaire regarding consensual
sexual activity, and Defendant's assertion that the victim had
sexual contact with a man the night before - through
documents provided in discovery, expert reports, and
Defendant's personal observations and knowledge long
before trial. Simply, Defendant had ample opportunity to file
a timely written motion. He did not.

       Third, the evidence Defendant sought to introduce to
address credibility was heard by the jury, albeit without
reference to the alleged sexual encounter with a man the
night before, through the testimony of the victim and the
reports and testimony of the experts. Specifically, the jury
heard the victim's denial of sexual activity within the previous
five days and about the presence of an unknown male's
DNA on the rectal swab. Our ruling did not preclude
Defendant from eliciting or arguing this evidence or using it
to attack the victim's credibility. In fact, in his closing,
counsel for Defendant highlighted and argued this evidence.
(N.T., 4/20/2016, pp. 16-17).

        Fourth, Defendant's sole reason for recalling the
victim was his belief that her general credibility had been
called into question based on the response she provided on
the questionnaire. According to Defendant, this "credibility
issue" constitutes an exception to the Rape Shield Law.
However, numerous cases have held that such evidence,
asserting that others in addition to Defendant had sexual
contact with victim, is inadmissible and not relevant. See
Durst, 559 A.2d at 506 ("Inasmuch as Appellee's offer of
proof tends only to show that others in addition to Appeltee
had sexual contact with the victim rather than showing how
this testimony would exonerate him, Appeltee has not
satisfied his burden of showing that the absent testimony
would have been helpful in establishing his innocence.").
See also Commonwealth v. Reefer, 573 A.2d 1153, 1154
(Pa. Super. 1990) (holding that such evidence is properly
excluded on grounds of relevancy).

        Finally, along similar lines, as we noted on the record,
Defendant's offer of proof did not allege or contain any
indication that the victim had motive to lie or bias that was
                              JO
                                                                68_0pinion and Order.pd

              specific to Defendant. Without a more specific proffer,
              defendant's general credibility argument is simply not
              enough to trump the Rape Shield Law. In this regard, a quick
              reading of Black could lead to the belief that a victim's past
              sexual conduct may be admissible if it brings credibility into
              question. However, subsequent appellate cases clarify and
              teach that a general credibility attack is simply not enough to
              trump the Rape Shield Law. In this regard, the Superior
              Court has clarified that inquiries attacking the victim's
              credibility are sufficient to pierce the Rape Shield Law "only
              where the victim's credibility was allegedly affected by bias
              against or hostility toward the defendant, or the victim had a
              motive to seek retribution." Commonwealth v. Boyles, 595
              A.2d 1180 (Pa. Super. 1991 ); Compare Commonwealth v.
              Frank, 577 A.2d 609, 620 (Pa. Super. 1990) and
              Commonwealth v. Erie, 521 A.2d 464, 467-69 (Pa. Super.
              1987), allocatur denied, 538 A.2d 875 (1988) (following
              Black) with Commonwealth v. Reefer, 573 A.2d 1153, 1154
              (Pa. Super. 1990) and Commonwealth v. Nenninger. 519
              A.2d 433, 437 (Pa. Super. 1986) and Commonwealth v.
              Dear, 492 A.2d 714, 719-20 (Pa. Super. 1985) and
              Commonwealth v. Coia, 492 A.2d 1159, 1161 (Pa. Super.
              1985) (distinguishing Black).

                      In Reefer. for example, the appellant sought to
              introduce witness testimony regarding the prior sexual
              conduct of the victim (and of her mother) for impeachment
              purposes. In addition to finding the proffered testimony
              irrelevant, the court noted the appellant's failure to "connect
              the alleged sexual activity involving the excluded defense
              witnesses with a motive for hostility by the victim, or his
              mother, against him." Reefer supra at 1154. The court went
              on to contrast Reefer with Black, a case in which the
              excluded evidence "concerned the defendant's ability to
              cross-examine the prosecutrix/victim about her incestuous
              relationship with her brother, who had been driven from the
              home for that reason by the defendant." Id. In Black, this
              evidence was admissible but it is clear that the proffer in that
              case laid a foundation for bias and motive. Here,
              Defendant's offer of proof did not allege or contain any
              indication that the victim had a specific motive to lie or bias
              towards Defendant. Without a more specific proffer,
              Defendant's general credibility argument was simply
              insufficient to trump the Rape Shield Law.

ld.at10-15.


                                            II
                                                                68_0pinion and Order.pdf

      On appeal, the Superior Court affirmed, stating:

                     The trial court's opinion comprehensively discusses
             and properly disposes of this issue. See Trial Ct. Op. at 12·
             15 (explaining (1) Appellant failed to comply with the
             procedural requirements of the Rape Shield Law; (2) "the
             evidence [Appellant] sought to introduce to address the
             credibility was heard by the jury, albeit without reference to
             the alleged sexual encounter with a man the night before,
             through testimony of the victim and the reports and
             testimony of the experts"; and (3) Appellant's general
             credibility argument was insufficient to trump the Rape
             Shield Law). With respect to Appellant's claim that he was
             denied his constitutional right to confront Ms. Zelaya-
             Betancourt through cross-examination, we note that the trial
             court did not preclude Appellant from recalling Ms. Zelaya-
             Betancourt as a witness. Rather, the court merely applied
             the Rape Shield Law's restrictions on the admissibility of
             evidence of past sexual conduct in limiting the questions that
             Appellant could ask if he questioned Ms. Zelaya-Betancourt;
             Appell and was free to confront Ms. Zelaya-Betancourt
             through other areas of questioning, but elected not to do so
             once the trial court made clear that his questioning had to
             conform to the Rape Shield Law's requirements.
             Enforcement of rules regarding the admissibility of evidence
             is not a violation of the constitutional right to confront
             witnesses. See Commonwealth v. Quartman, 458 A.2d 994,
             996 (Pa. Super. 1983) ("The fundamental right to confront
             witnesses often gives way ... to certain evidentiary
             principles."). Appellant therefore is not entitled to relief on
             this issue.

Superior Court Opinion, pp. 10-11.

       For the reasons expressed on the record during trial as well as those recited in

the Prior Opinions, Defendant's assertion that the evidence he sought to present was

admissible was and remains meritless. Since counsel cannot be deemed ineffective

for failing to pursue a baseless or meritless claim, it follows that trial counsel cannot

be deemed ineffective.

      We recognize that, as Defendant points out, one of the bases for our ruling was

trial counsel's failure to timely and properly file a motion under the Rape Shield law.

                                           12
                                                                 68_0pinion and Order.pd

However, as both the Prior Opinions and our on-record reasoning demonstrate, the

procedural snafu was only one of several reasons for our ruling. For the reasons

stated in those opinions, even if a motion had been timely and properly filed, the

evidence Defendant sought to present would have been inadmissible.

       As also discussed in the Prior Opinions, while trial counsel did not file a Rape

Shield Law motion he did attempt to introduce the challenged evidence and question

the victim about the alleged sexual encounter of the night before. Further, we did not

preclude Defendant from recalling the victim; rather, we limited the subject matter

about which inquiries could be made in accordance with the Rape Shield Law.

Moreover,

              the evidence Defendant sought to introduce to address
              credibility was heard by the jury, albeit without reference to
              the alleged sexual encounter with a man the night before,
              through the testimony of the victim and the reports and
              testimony of the experts. Specifically, the jury heard the
              victim's denial of sexual activity within the previous five days
              and about the presence of an unknown male's DNA on the
              rectal swab. Our ruling did not preclude Defendant from
              eliciting or arguing this evidence or using it to attack the
              victim's credibility. In fact, in his closing, counsel for
              Defendant highlighted and argued this evidence. (N.T.,
              4/20/2016, pp. 16-17).

Appeal Opinion, p.13. As this passage shows, Defendant's assertion that the jury did

not hear evidence of the type he sought to introduce due to trial counsel's

ineffectiveness is simply wrong.

      Additionally, even if there is some twist on the evidence that Defendant could

with a straight face argue the jury did not hear, an assertion that "if the jury had heard

the entirety of Mr. Neal's defense, they might have acquitted him of all charges"




                                            13
                                                                                   68_0pinion and Order.pd

(Defendant's Letter Brief, p. 7 (unnumbered)(emphasis added), does not satisfy the

"but for" test and does not state a valid claim of attorney ineffectiveness.

        Finally, while the PCRA petition appears to be predicated entirely on a claim of

attorney ineffectiveness, portions of Defendant's brief may also be read as attempting

to substantively challenge our evidentiary ruling on constitutional grounds.1 To the

extent Defendant is or may be deemed to be asserting a substantive argument

outside the context of an ineffectiveness claim, he is under the law discussed above

ineligible for relief under the PCRA because his claim was previously litigated and

rejected in his direct appeal. Similarly, to the extent any vestige of a different non-

ineffectiveness claim that was not previously litigated can be gleaned, the claim has

been waived because Defendant could easily have litigated such an issue in his direct

appeal but did not.

         For these reasons, we enter the following




I
  For example, Defendant's brief lists two inter-related issues. In the second issue, Defendant squarely raises an
ineffective assistance claim. However, in the first he asks, "Was the jury prevented from hearing evidence
regarding the alleged victim's motive to fabricate allegations due to defense counsel's failure to raise it as a pre-
trial issue?" (Defendant's Letter brief, p. 3).

                                                         14
                                                              68_0pinion and Order.pdf




               COURT OF COMMON PLEAS OF MONROE COUNTY
                     FORTY-THIRD JUDICIAL DISTRICT
                   COMMONWEALTH OF PENNSYLVANIA



COMMONWEALTH OF PENNSYLVANIA                        NO. 225 CRIMINAL 2015

      v.
ALLEN NEAL,
                                                       PCRA
      DEFENDANT


                                       ORDER

      AND NOW, this 5th day of June, 2019, it is ORDERED that Defendant's petition

for relief under the Post-Conviction Relief Act, 42 Pa. C.S.A. Section 9541 et. seq., is

DENIED.

      Defendant is advised that he has thirty (30) days from the date this Order is

entered on the docket and served on the parties within which to file an appeal to the

Pennsylvania Superior Court.




Cc:   District Attorney (MTR)
      Public Defender (CB)




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