J-S84029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID SCOTT TEETER                         :
                                               :
                       Appellant               :   No. 1748 EDA 2018

                    Appeal from the PCRA Order May 11, 2018
                 In the Court of Common Pleas of Wayne County
              Criminal Division at No(s): CP-64-CR-0000217-2014


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 18, 2019

        David Scott Teeter1 appeals from the order entered May 11, 2018, in

the Wayne County Court of Common Pleas, denying her first petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Teeter seeks relief from the judgment of sentence of

an aggregate term of 12 to 26 years’ imprisonment, imposed following her

conviction of two counts of rape and one count of endangering the welfare of

a child2 for the sexual assault of her stepdaughter, A.H., and her biological

daughter, S.T., at a time when they were both under the age of 13 years old.



____________________________________________


1 Teeter is transgender and identifies as a woman. See Teeter’s Brief at 5
n.1. Therefore, we will refer to Teeter using the pronouns “her” and “she.”

2   See 18 Pa.C.S. §§ 3121(a)(6) and (c), and 4304, respectively.
J-S84029-18



On appeal, Teeter raises two claims asserting the ineffective assistance of trial

counsel. For the reasons below, we affirm.

      The pertinent testimony presented during Teeter’s jury trial was

summarized by a panel of this Court in the memorandum decision affirming

Teeter’s judgment of sentence on direct appeal:

      A.H., who was born in January 1991, testified that [Teeter] was
      her stepfather. A.H. stated that [Teeter] has “been in my life since
      I [was] 2 years old. [Sh]e’s been the one I thought was dad.” A.H.
      testified that when she was seven or eight years old, [Teeter]
      began raping her. A.H. testified that she “just laid there and held
      my teddy bear.” She said that [Teeter] told her “it was normal to
      do it with my father.” [Teeter] also told her “to keep [her] mouth
      shut or [her] mom and sister [were not going to] be here
      anymore.” A.H. testified that she was afraid of [Teeter] and did
      not tell her mother because [Teeter] had “gotten abusive before”
      and she did not think her mother would believe her. [Teeter]
      raped A.H. continuously for ten years, from the time she was eight
      until she was 18. A.H. testified, “[i]t’s impacted my life in every
      way. I can’t keep a relationship, can't keep a job, I have a horrible
      relationship with my mother now. I’m just not the same.”

      A.H.’s step-sister, S.T., born in October 2000, testified to being
      [Teeter’s] daughter. S.T. testified that when she was nine years
      old, [Teeter] left her alone at a gas station for an hour. She stated
      that when [Teeter] returned, and they were driving home,
      [Teeter] “would reach into my pants and ... put [her] fingers
      inside” [S.T.’s] vagina. [Teeter], who weighed over 300 pounds
      at the time, told S.T. “that if [she] told anyone [Teeter] was going
      to hurt [her] and whoever [she] told.” S.T. did not tell her mother
      because she “was afraid [Teeter] was going to hurt me and her
      [mother].” [Teeter] continued to molest S.T. on approximately
      eight more occasions. Eventually, S.T. began cutting her arms,
      and when S.T.’s friends saw the cuts, they went to their school
      office seeking help. S.T. then told school officials about [Teeter’s]
      actions, and the school officials contacted police. S.T. went with
      her mother to the State Police Barracks where she was
      interviewed regarding the incidents with [Teeter]. S.T. testified,
      “It changed who I am. I'm afraid to actually go out in public


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J-S84029-18


     because people know. Having to deal with this I've gained weight
     really fast.”

                                   ****

      [Teeter] testified in [her] defense. [She] stated that [she] “came
     out as transgender in 2012,” and [her] “mind is female, and
     unfortunately [her] body is male.” [Teeter] said [she] “[m]ost
     definitely [did] not” commit the crimes with which [she] was
     charged. With regard to the molestation of S.T., [Teeter] said,
     “[n]ot only did [I] not do it, but it’s physically impossible
     [because] I'm wearing a seat belt, there’s no way I can reach that
     passenger seat; if I can it’s just the edge of the seat.” With regard
     to the rapes of A.H. over a ten year period, [Teeter] testified that
     [she] “never had unsupervised contact with [A.H.].”4 [Teeter]
     explained the charges against [her], stating, “[the girls’] mother’s
     been slighted, she’s not getting her child support on time like she
     wants. She’s vindictive and she uses the children as a weapon.”
     [Teeter] described the charges against [her] as “bogus lies.” On
     cross-examination, [Teeter] testified that [she] had been
     transgender “all [her] life,” but also stated that [she] married two
     women, and had three children [as a male]. In addition, [Teeter]
     averred that [she] had “been drugged eight days in a van in a
     cube to be put on trial for charges I never did.”

     __________
     4 On cross-examination, [Teeter] conceded [she] was alone with
     A.H. when [she] took her on “road calls” in [her] work truck, and
     stated “I stand corrected.” N.T., 1/13/15 (victim/defendant), at
     94.

     __________

     [Teeter] called Nicholas Dzwonczyk to testify. Mr. Dzwonczyk
     testified to knowing [Teeter] for ten years, and stated that
     [Teeter] “was very well respected” in the community, and had a
     reputation for being peaceful and law abiding.

     Finally, the Commonwealth called Dawn Teeter on rebuttal. Mrs.
     Teeter testified that [Teeter] was her husband with whom she has
     two biological daughters, including S.T. Mrs. Teeter also testified
     that there were times [Teeter] was alone with both S.T. and
     A.H. Mrs. Teeter was aware that [Teeter] was transgender. Mrs.
     Teeter denied telling her daughters to make allegations against
     [Teeter].

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J-S84029-18



Commonwealth v. Teeter, 141 A.3d 593 [No. 2082 EDA 2015] (Pa. Super.

2016) (unpublished memorandum at *1-*2) (record citations and some

footnotes omitted).

       On September 22, 2014, the Commonwealth filed an information

charging Teeter with the following 13 offenses: (1) three counts of rape and

one count of involuntary deviate sexual intercourse with respect to victim

A.H., and (2) eight counts of aggravated indecent assault and one count of

endangering the welfare of a child with respect to victim S.T.3 Relevant to the

claims raised herein, on October 20, 2014, three months before trial,

appointed counsel filed a motion to withdraw because Teeter had filed a

complaint against him before the Pennsylvania Supreme Court’s Disciplinary

Board.     The complaint set forth Teeter’s dissatisfaction with counsel’s

representation. See Motion to Withdraw as Counsel, 10/20/2014, Exhibit A,

Complaint Information Form, 9/29/2014. The trial court held a hearing, and

denied the motion on October 24, 2014.           The court found Teeter’s “mere

dissatisfaction” with counsel’s representation was insufficient to “establish

good cause” required for the appointment of new counsel. Order, 10/24/2014.

       The case proceeded to a jury trial. On January 14, 2015, the jury found

Teeter guilty of two counts of rape, with respect to A.H., and one count of

endangering the welfare of children, with respect to S.T. Teeter was acquitted

____________________________________________


3See 18 Pa.C.S. §§ 3121 (a)(6), (c), and (a)(2); 3123(a)(2); 3125(a)(7),
and 4304, respectively.


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of the remaining nine offenses. On April 16, 2015, the trial court imposed

consecutive sentences of 66 to 132 months’ incarceration on each count of

rape, and a consecutive term of 12 to 48 months’ incarceration for

endangering the welfare of a child, for an aggregate term of 12 to 26 years’

imprisonment. The court also notified Teeter that she would be subject to

lifetime registration as a Tier III sex offender under SORNA. Teeter filed a

post-sentence motion, which was denied by the trial court, and a timely direct

appeal.   As noted above, a panel of this Court affirmed the judgment of

sentence, and, on August 30, 2016, the Pennsylvania Supreme Court denied

allocator review. See Teeter, supra, 141 A.3d 593, appeal denied, ___ A.3d

___ [323 MAL 2016] (Pa. 2016).

     On May 30, 2017, Teeter filed a timely, pro se PCRA petition, challenging

the ineffective assistance of trial counsel. PCRA counsel was appointed two

months later.   Although counsel did not file an amended petition, he did

request the PCRA court conduct an evidentiary hearing on Teeter’s claims. A

PCRA hearing was held on January 8, 2018, during which both Teeter and trial

counsel testified. Thereafter, on April 8, 2018, Teeter filed a pro se motion,

entitled “Motion to be Removed from SORNA,” seeking an order exempting

him from registration under SORNA based upon the Pennsylvania Supreme

Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),




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cert. denied, 138 S.Ct. 925 (U.S. 2018).4 The PCRA court entered an order

on May 7, 2018, indicating it would not consider the motion because Teeter

was represented by counsel.          On May 11, 2018, the court denied Teeter’s

PCRA petition. This timely appeal followed.5

       In both issues raised on appeal, Teeter contends trial counsel rendered

ineffective assistance. Our review of an order denying PCRA relief is well-

settled:

       This Court reviews a PCRA court’s decision in the light most
       favorable to the prevailing party. Commonwealth v. Hanible,
       612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to a
       determination of whether the record supports the PCRA court’s
       factual findings and whether its legal conclusions are free from
       error. Id. “A PCRA court’s credibility findings are to be accorded
       great deference, and where supported by the record, such
       determinations     are   binding    on    a    reviewing    court.”
       Commonwealth v. Treiber, ___ Pa. ___, 121 A.3d 435, 444
       (2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d
____________________________________________


4 In Muniz, the Pennsylvania Supreme Court held SORNA’s registration
provisions constitute punishment, and, therefore, the retroactive application
of those provisions violates the ex post facto clauses of the federal and
Pennsylvania constitutions. Muniz, supra, 164 A.3d at 1193.

5  On June 8, 2018, the PCRA court directed Teeter to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). PCRA
counsel did not comply with that order, but rather, on July 3, 2018, filed a
motion for withdrawal in this Court because counsel had been appointed as an
assistant district attorney in another county. By order entered July 20, 2018,
this Court granted counsel’s motion, and directed the PCRA court to appoint
new counsel within 10 days. Present counsel was appointed on July 26, 2018,
and filed a concise statement on November 5, 2018. Although it does not
appear that either prior or present PCRA counsel requested an extension to
file the concise statement, the PCRA court accepted the late statement, and
addressed the claims in its opinion. Based upon the late change of counsel,
we decline to find waiver.


                                           -6-
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      297, 301 (2011)). We review the PCRA court’s legal conclusions
      de novo. Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595,
      603 (2013).

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016). Furthermore,

where, as here, the defendant alleges counsel rendered ineffective assistance,

we note:

              “In order to obtain relief under the PCRA premised upon a
      claim that counsel was ineffective, a petitioner must establish
      beyond a preponderance of the evidence that counsel’s
      ineffectiveness ‘so undermined the truth-determining process that
      no reliable adjudication of guilt or innocence could have taken
      place.’” Commonwealth v. Payne, 794 A.2d 902, 905 (Pa.
      Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When
      considering such a claim, courts presume that counsel was
      effective, and place upon the appellant the burden of proving
      otherwise. Id. at 906. “Counsel cannot be found ineffective for
      failure to assert a baseless claim.” Id.

            To succeed on a claim that counsel was ineffective,
      Appellant must demonstrate that: (1) the claim is of arguable
      merit; (2) counsel had no reasonable strategic basis for his or her
      action or inaction; and (3) counsel’s ineffectiveness prejudiced
      him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super.
      2003).

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013).                “To

demonstrate prejudice, a petitioner must show that there is a reasonable

probability that, but for counsel’s actions or inactions, the result of the

proceeding would have been different.” Commonwealth v. Mason, 130 A.3d

601, 618 (Pa. 2015).

      First, Teeter argues trial counsel was ineffective for failing to seek to

withdraw from representation after a breakdown in the attorney-client

relationship.   See Teeter’s Brief at 15.   She asserts she was so “deeply



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concerned with trial counsel’s performance and his lack of pre-trial

investigation” that she filed a complaint against him with the disciplinary

board. Id. at 17. Although counsel filed a motion to withdraw based upon

that complaint, the court denied the motion. Teeter insists the relationship

then continued to “erode” as counsel decided not to call one of Teeter’s

daughters to testify without consulting Teeter, and reported Teeter’s brother,

another potential witness, to police just days before trial after her brother

threatened counsel. Id. at 18. She claims “[b]ecause of these conflicts of

interest, prejudice ought to be presumed[.]”     Id. at 19.   However, in any

event, Teeter maintains that because of counsel’s ineffectiveness, nearly all

of her witnesses failed to testify. See id.

      The PCRA court found Teeter “failed to establish that ‘irreconcilable

differences’ existed between trial counsel and Teeter.” PCRA Court Opinion,

5/11/2018, at 5. It is important to emphasize that trial counsel did request

to withdraw after Teeter filed a disciplinary complaint against him. See Motion

to Withdraw as Counsel, 10/20/2014. However, the trial court denied that

motion because Teeter expressed only his mere dissatisfaction with counsel’s

performance, and did not establish the existence of “irreconcilable differences

… between counsel and client.” Order, 10/24/2014. The PCRA court found

the same to be true here. The court opined:

      Trial counsel may have taken a strategic course of action that
      [Teeter] was dissatisfied with. However, dissatisfaction is not
      sufficient to establish that irreconcilable differences existed
      between counsel and [Teeter].


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PCRA Court Opinion, 5/11/2018, at 5. We find no reason to disagree.

       First, the record does not support Teeter’s claim that counsel had “an

actual conflict of interest that adversely affected his performance.” Teeter’s

Brief at 16. The cases Teeter relies upon involving a conflict of interest of an

attorney who represented a crucial witness at some point prior to trial. See

Commonwealth v. Reid, 99 A.3d 427, 442 (Pa. 2014); Commonwealth v.

Karenbauer, 715 A.2d 1086, 1094 (Pa. 1988).                 Even under those

circumstances, the Supreme Court determined in both cases that no actual

conflict of interest existed. See Reid, supra; Karenbauer, supra. Similarly,

here, there was no actual conflict asserted.     Rather, Teeter maintains the

complaint she filed against trial counsel,6 followed by counsel’s failure to

consult her before deciding not to call her daughter as a witness, and failure


____________________________________________


6 We note Teeter cites to this Court’s decision in Commonwealth v.
Goldsmith, 619 A.2d 311 (Pa. Super. 1993), appeal denied, 625 A.2d 1911
(Pa. 1993), in support of her allegation that the filing of a disciplinary
complaint against an attorney is per se grounds for withdrawal. Indeed, in
that case, the panel stated: “It is difficult to envision counsel being able to
continue providing effective assistance following this obvious breakdown in
the attorney-client relationship.” Id. at 316. However, that case primarily
concerned the Commonwealth’s appeal of an order granting a defendant’s
motion to suppress evidence. See id. at 311-316. After determining the
order should be affirmed, the panel noted counsel for appellee had petitioned
the court to withdraw, based upon the fact the appellee “filed a complaint
against counsel with our supreme Court’s Disciplinary Board.” Id. at 316. As
noted above, the panel granted the motion to withdraw due to the “obvious
breakdown in the attorney-client relationship.” Id. That case, however,
involved a different stage in the attorney-client relationship, and the panel did
not specify the underlying basis of the appellee’s complaint, as the trial court
did here. Therefore, we do not find Goldsmith to be controlling.


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to inform the court of Teeter’s brother’s threats, demonstrate a breakdown of

the attorney-client relationship.   We disagree. As both the trial court and

PCRA court have found, Teeter’s complaints focus on her dissatisfaction with

counsel’s strategy. Indeed, in her disciplinary complaint, Teeter stated she

was “very dissatisfied” with counsel’s representation during the preliminary

hearing stage.    Motion to Withdraw as Counsel, 10/20/2014, Exhibit A,

Disciplinary Complaint at 3. Moreover, with respect to Teeter’s daughter’s

proposed testimony, trial counsel explained he decided not to call her after

speaking with her and realizing her testimony would not have been favorable.

See N.T., 1/8/2018, at 26. Further, with regard to the threats by Teeter’s

brother, counsel stated he did not believe that created a conflict because he

“was prepared to go to trial and so was [Ms.] Teeter.” Id. This Court has

found no “irreconcilable differences” where “the defendant merely alleges a

strained relationship with counsel, where there is a difference of opinion in

trial strategy, where the defendant lacks confidence in counsel’s ability, or

where there is brevity of pretrial communications.” Com. v. Floyd, 937 A.2d

494, 497 (Pa. Super. 2007), citing Commonwealth v. Grazier, 570 A.2d

1054, 1055-1056 (Pa. 1990). Similarly, Teeter is entitled to no relief under

the facts presented here.

      Second, Teeter argues trial counsel was ineffective for failing to locate,

investigate, interview, and call potential witnesses for trial. See Teeter’s Brief

at 19-23. Teeter claims counsel was aware of two witnesses who were willing

to testify on her behalf at trial: her mother and her brother. However, counsel

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chose not to call Teeter’s elderly mother, who lived out of state, because she

could not travel to the courthouse, and failed to call her brother after he

“threatened to beat [counsel] up for not acting in” Teeter’s best interest. Id.

at 20.   In addition, Teeter maintains she notified counsel of several other

witnesses prior to trial, including Mark Underwood and Edward Novobilski,

“both of whom Ms. Teeter believed would have testimony helpful to her

defense.” Id. at 21. However, as evidenced by letters admitted during the

evidentiary hearing, counsel did not attempt to contact the witnesses until

after her jury trial. Although Teeter acknowledges counsel’s testimony that

she provided him with these names during the appeal process, she insists

“[w]hat is more probable is that trial counsel was ineffective in investigating

witnesses prior to trial, which directly resulted in the lack of witnesses at Ms.

Teeter’s trial.” Id. at 22.

      In order to establish trial counsel was ineffective for failing to call certain

witnesses at trial, a petitioner must demonstrate:

      (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. Brown, 196 A.3d 130, 167 (Pa. 2018) (quotation

omitted).

      We agree with the PCRA court that Teeter failed to prove her claim. The

court explained:


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              At the PCRA hearing trial counsel testified that he was aware
        of several possible witnesses and also that difficulties arose in
        procuring any of those witnesses for trial. [Teeter] testified
        similarly that these several possible witnesses existed, however,
        [Teeter] failed to establish whether they were willing and able to
        appear or that the proposed testimony was necessary in order to
        avoid prejudice to [her]. None of these missing witnesses
        appeared at the PCRA hearing and offered testimony or affidavits
        at the least to exonerate [Teeter].

PCRA Court Opinion, 5/11/2018, at 4.

        Assuming, arguendo, Teeter gave counsel a list of potential witnesses

before trial, a fact counsel denied,7 Teeter has failed to establish the witnesses

were available and willing to testify on her behalf at her trial. Furthermore,

counsel explained that he did speak with Teeter’s daughter and brother, but

made the strategic decision not to call them as witnesses at trial. With regard

to Teeter’s daughter, counsel testified that, after speaking with her, he

realized “her testimony was not going to be favorable[.]” Id. at 26. Moreover,

he explained he did not call Teeter’s brother because “there was a problem

with his demeanor as [they] approached trial[,]” which was evidenced by the

threats the brother made to counsel. Id. at 25. Lastly, although trial counsel

stated Teeter’s mother wanted to appear by video because she lived out of

state, counsel stated he “told her no [because he] wanted her down here.”

Id. at 27. We find this to be a strategic decision by counsel, and Teeter has

not demonstrated that counsel’s failure to permit her mother to testify via



____________________________________________


7   See N.T., 1/8/2018, at 31.



                                          - 12 -
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video prejudiced her trial.8 Accordingly, Teeter’s second ineffectiveness claim

fails as well.

       Because we conclude the PCRA court did not err or abuse its discretion

in denying Teeter PCRA relief, we affirm the order on appeal.9

       Order affirmed.10

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/19




____________________________________________


8 We note Teeter did not establish his 74-year-old mother was physically
unable to travel to Pennsylvania from her home in New Hampshire. See N.T.,
1/8/2018, at 9.

9 We note Teeter also asserts in a one-sentence argument that counsel
“neither filed a motion to modify bail so that Ms. Teeter could assist with the
procurement of these witnesses, nor used his private investigator to help
locate said witnesses.” Teeter’s Brief at 22. However, as noted supra, Teeter
failed to demonstrate that any of these witnesses were available or willing to
testify at trial.

10Our decision does not address Teeter’s potential challenge to his registration
requirements under SORNA following the Supreme Court’s decision in Muniz,
supra. As noted above, Teeter raised this claim in a pro se filing while
represented by counsel, and counsel did not seek to file an amended petition
to address that argument. Nothing in this decision precludes Teeter from filing
a second PCRA petition to raise this issue.

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