J-S42007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JERRY ALLEN REED,

                            Appellant                 No. 1875 MDA 2016


                 Appeal from the PCRA Order October 28, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000323-2014
                            CP-36-CR-0005013-2012


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                FILED JULY 13, 2017

       Appellant, Jerry Allen Reed, appeals from the order entered on October

28, 2016, dismissing his first petition pursuant to the Post-Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. On April 29, 2014, a jury convicted Appellant of rape, incest, sexual

assault, attempted involuntary deviate sexual intercourse, indecent assault,

indecent exposure, and two counts each of unlawful contact with a minor

and corruption of minors.1             On September 5, 2014, the trial court

____________________________________________


1
   Appellant raped his niece and she gave birth to a daughter.          The
Commonwealth did not prosecute Appellant for crimes against his niece. In
this case, Appellant was charged with crimes related to sexual misconduct in
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determined that Appellant was a sexually violent predator and sentenced

him to an aggregate term of 21 to 50 years of imprisonment. We affirmed

Appellant’s judgment of sentence in an unpublished memorandum on

September 9, 2015.           See Commonwealth v. Reed, 133 A.3d 66 (Pa.

Super. 2015) (unpublished memorandum).             Our Supreme Court denied

further review on March 23, 2016. See Commonwealth v. Reed, 135 A.3d

585 (Pa. 2016).

      On July 19, 2016, Appellant filed a timely pro se PCRA petition. The

PCRA court subsequently appointed counsel to represent Appellant.           On

August 15, 2016, counsel for Appellant filed a no-merit letter and a request

to withdraw from representation pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).             On August 17, 2016, the PCRA court gave

Appellant notice of its intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907. Appellant filed a pro se response on September 6, 2016.

On October 28, 2016, the trial court entered an order and opinion dismissing


                       _______________________
(Footnote Continued)

two separate incidents of sexual abuse against the child born to Appellant’s
niece. Thus, the victim in this case is both Appellant’s biological daughter
and great niece.       At trial, the Commonwealth provided evidence that
Appellant admitted he was the victim’s father. N.T., 4/29/2014, at 345.
The Commonwealth also presented DNA evidence confirming paternity within
a 99.9999 percent relative probability. Id. at 321. The victim ultimately
gave birth to a child and DNA tests showed that Appellant was also the
father of the victim’s child within a 99.9999 percent relative probability. Id.



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Appellant’s PCRA petition and granting appointed counsel’s request for

withdrawal. This timely pro se appeal resulted.2

       Appellant presents, pro se, the following issues for our review:

       1. Counsel [was ineffective in failing] to permit [] Appellant to
          testify on his own behalf [at] both the preliminary hearing as
          well as at trial.

       2. Counsel was ineffective for failing to interview witnesses
          identified to counsel by [] Appellant prior to trial who held
          information and were willing to testify and would have refuted
          the Commonwealth’s contentions that [] Appellant sexually
          abused [the victim].

       3. [Counsel was ineffective in failing] to call two witnesses
          present at trial and who were willing to testify at trial on []
          Appellant’s behalf.

       4. [Counsel was ineffective in failing] to research the
          [Commonwealth’s] DNA experts[’] findings that [] Appellant
          and [the] alleged victim were in fact related by blood which
          would have contradicted the alleged victim’s accusation that
          [] Appellant is the father of the illegitimate child.

Appellant’s Brief at 4.

       All of Appellant’s issues allege that he is entitled to collateral relief

because trial counsel provided ineffective assistance of counsel.           Our

standard of review is well-settled:

       We review the denial of a PCRA [p]etition to determine whether
       the record supports the PCRA court's findings and whether its
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2
  On November 15, 2016, Appellant filed a pro se notice of appeal. The
PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Instead, the PCRA
court entered an opinion pursuant to Pa.R.A.P. 1925(a) on November 22,
2016 that relied upon its earlier decision filed on October 28, 2016.



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      [o]rder is otherwise free of legal error. The scope of review is
      limited to the findings of the PCRA court and the evidence of
      record, viewed in the light most favorable to the prevailing party
      at the trial level.

                             *         *                *

      In analyzing claims of ineffective assistance of counsel, we
      presume that trial counsel was effective unless the PCRA
      petitioner proves otherwise. In order to succeed on a claim of
      ineffective assistance of counsel, [an a]ppellant must
      demonstrate (1) that the underlying claim is of arguable merit;
      (2) that counsel's performance lacked a reasonable basis; and
      (3) that the ineffectiveness of counsel caused the appellant
      prejudice. Where the underlying claim lacks arguable merit,
      counsel cannot be deemed ineffective for failing to raise it. [An
      a]ppellant bears the burden of proving each of these elements,
      and his failure to satisfy any prong of the ineffectiveness test
      requires rejection of the claim of ineffectiveness.

Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) (internal

citations, quotations, and original brackets omitted).

      In his first issue presented, Appellant argues that trial counsel refused

to allow him to testify on his own behalf.    “Claims alleging ineffectiveness of

counsel premised on allegations that trial counsel's actions interfered with an

accused's right to testify require a defendant to prove either that counsel

interfered with his right to testify, or that counsel gave specific advice so

unreasonable as to vitiate a knowing and intelligent decision to testify on his

own behalf.”     Commonwealth v. Miller, 987 A.2d 638, 660 (Pa. 2009)

(internal citation and quotations omitted).

      Here,    after   the   Commonwealth     rested,       the   following   exchange

occurred between Appellant and the trial court:


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     The Court:     My understanding from your attorney is that
                    you have decided not to testify in this case. Is
                    that correct, sir?

     [Appellant]:   Yes, Your Honor.

     The Court:     That is certainly your right and your decision []
                    after discussing this with your attorney. I want
                    to make sure that you understand that you
                    have the right to testify if you wish to testify.
                    Do you understand that, sir?

     [Appellant]:   I understand, yes, sir.

     The Court:     Are you satisfied that you have had sufficient
                    opportunity to discuss this matter with [your
                    attorney] so that you can make an informed
                    decision, so that you know what you’re doing?
                    Do you understand that?

     [Appellant]:   Yes, Your Honor.

     The Court:     Do you understand that if you were to testify,
                    if you were to be called as a witness, your
                    attorney would be able to ask you certain
                    questions, whatever questions he thought
                    appropriate, and the district attorney would
                    have an opportunity to cross-examine you? Do
                    you understand that?

     [Appellant]:   Yes, sir.

     The Court:     I want to make sure you understand, however,
                    that if you testify, you would not be permitted,
                    and I would specifically instruct you, that you
                    would not be permitted to testify at all about
                    the sexual practice or habits of [the victim].
                    Do you understand that?

     [Appellant]:   Yes, sir.

     The Court:     And, have you had that discussion with your
                    attorney?


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       [Appellant]:         Yes, sir. I discussed it with him, yes, sir.

       The Court:           Do you have any question of me or of your
                            attorney about your right to testify?

       [Appellant]:         No, I understand it all.

       The Court:           Are you making this decision on your own,
                            after discussing it with your attorney?

       [Appellant]:         Yes, sir, I’m making it on my own.

N.T., 4/29/2014, at 369-371. As the foregoing demonstrates, Appellant

knowingly, intelligently, and voluntarily chose not to testify. Thus, there is

no merit to Appellant’s claim that trial counsel was ineffective for refusing to

allow Appellant to testify on his own behalf.3 Appellant’s first issue fails.

       In his last three issues presented, Appellant contends that trial counsel

was ineffective for failing to call numerous witnesses. Appellant claims that

he identified “various witnesses” to his attorney pre-trial “who counsel failed

to even attempt to contact.” Appellant’s Brief at 13. He avers that “[h]ad

counsel interviewed these witnesses, he would have learned that at least
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3
   Appellant also argues that trial counsel impeded his right to testify at his
preliminary hearing. This aspect of his claim was not set forth in his PCRA
petition and the PCRA court did not address it in its subsequent Rule 1925(a)
opinion. We could find this claim waived. See Pa.R.A.P. 302(a). However,
while ineffective assistance of counsel claims relative to a preliminary
hearing are cognizable under the PCRA, “our Supreme Court [] has
concluded that ‘once a defendant has gone to trial and has been found guilty
of the crime or crimes charged, any defect in the preliminary hearing is
rendered immaterial.’” Commonwealth v. Stultz, 114 A.3d 865, 882 (Pa.
Super. 2015). Thus, as we concluded in Stultz, Appellant herein cannot
establish that he was prejudiced or that his claim has merit relative to his
preliminary hearing.



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one   –   possibly   more   –   of the    witnesses   were   threatened by the

Commonwealth that if they did testify, they would be arrested on charges

unrelated to the case sub judice.” Id.         Appellant also claims that he “had

witnesses present and willing to testify on his behalf at trial[,]” but that trial

counsel “told the witnesses to ‘go home,’ adding that he had ‘no intentions

of putting on any witnesses’ to testify[.]” Id. at 14. Appellant refers to two

affidavits that he attached to his PCRA petition and claims “the PCRA

attorney as well as the PCRA court did not even attempt to test the veracity

of the two witnesses.”      Id.   Finally, Appellant asserts that because the

Commonwealth charged him with incest, he “requested counsel to get an

independent expert on DNA to challenge the Commonwealth’s witnesses,”

because the evidence “the Commonwealth put before the jury was not 100%

conclusive.”   Id. at 16.   Because he did not have an expert to rebut the

Commonwealth’s evidence at trial, Appellant claims trial counsel was

ineffective. Id.

      Our Supreme Court has stated:

      To be entitled to relief on a claim of ineffectiveness for failure to
      call a witness, [an] appellant must demonstrate [that]: the
      witness existed, was available, and willing to cooperate; counsel
      knew or should have known of the witness; and the absence of
      the witness's testimony prejudiced [the] appellant. A PCRA
      petitioner cannot succeed on such a claim if the proposed
      witness testimony would not have materially aided him. In such
      a case, the underlying-merit and prejudice prongs of the
      [ineffective assistance of counsel] test logically overlap.




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Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016) (internal

citations and quotations omitted).            Moreover, to the extent Appellant’s

ineffective assistance of counsel claim rests on trial counsel’s failure to call

an expert witness, it is settled that “[t]he mere failure to obtain an expert

rebuttal witness is not ineffectiveness.”         Commonwealth v. Chmiel, 30

A.3d 1111, 1143 (Pa. 2011) (internal citation and quotations omitted). An

appellant “must demonstrate that an expert witness was available who

would have offered testimony designed to advance appellant's cause.” Id.

      Upon review, Appellant only identified two potential witnesses by

attaching affidavits to his PCRA petition. To the extent that Appellant claims

counsel was ineffective for failing to interview or call unnamed, or otherwise

unidentified    witnesses,   including    a    purported   expert   to   refute   the

Commonwealth’s DNA evidence, his claim fails for failing to demonstrate

there were existing, available witnesses to testify on his behalf. Appellant

did provide two affidavits in his PCRA petition to support his claim. The first

affidavit is a seven-page, stream-of-consciousness narrative of Appellant’s

version of events signed by him. See PCRA Petition, 7/21/2016, at Exhibit

A.   However, we have already determined that Appellant knowingly and

intelligently waived his right to testify. The other affidavit, signed by Tina

Ross, does not indicate that she was available and willing to testify. Id. at

Exhibit B.     More importantly, however, the proposed testimony would not

have materially aided Appellant.         Upon review, Ross’ proffered testimony


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was tangential to the sexual misconduct at issue.     In the affidavit, Ross

claims that she lent Appellant a GPS device in “the summer of 2010/2011”

so Appellant could drive from Lancaster to retrieve the victim’s mother from

the Philadelphia airport.   Id.    Appellant has not demonstrated how the

absence of this testimony prejudiced him in this prosecution for sexual

misconduct. For all of the foregoing reasons, we conclude that Appellant’s

overarching claim that trial counsel was ineffective for failing to call

witnesses does not entitle Appellant to relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/13/2017




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