J-S34011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 WILLIAM DONALD LEIGH                    :
                                         :
                    Appellant            :   No. 1113 WDA 2018

            Appeal from the PCRA Order Entered July 11, 2018
  In the Court of Common Pleas of Blair County Criminal Division at No(s):
                        CP-07-CR-0000463-2014


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY DUBOW, J.:                      FILED SEPTEMBER 04, 2019

     Appellant, William Donald Leigh, appeals from the Order entered July

11, 2018, denying his Petition for collateral relief filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review,

we affirm.

     We glean the following factual and procedural history from this Court’s

February 3, 2016 unpublished memorandum and the certified record. This

case arises from the sexual abuse perpetrated by Appellant on minor victim

(“the Victim”). Appellant was the       boyfriend of   the   Victim’s mother

(“Mother”). The Victim lived with Appellant, Mother, and Appellant’s then-

teenage daughter. According to the Victim, when she was between the ages

of five and eight years old, Appellant repeatedly attempted to engage and

actually engaged in sexual acts with her. On May 11, 2013, the Victim told her

friend that Appellant “had sex” with her. The Victim’s friend reported this

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* Retired Senior Judge assigned to the Superior Court.
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conversation to her mother, who then reported it to both Mother and the

Victim’s grandmother, Connie. Connie reported it to police, and police arrested

Appellant.

        At Appellant’s trial on August 6 and 7, 2014, the Commonwealth

presented testimony from the Victim; Mary Twomey, a nurse practitioner

specializing in the care of sexually-abused children; and Shannon Cossaboom,

an expert in conducting forensic interviews with children where sexual abuse

is suspected. Cossaboom interviewed the Victim on May 30, 2013, in which

the Victim provided details about the sexual acts that occurred between

Appellant and the Victim. The Commonwealth played the recorded interview,

and the court admitted it into evidence. Appellant presented a defense

premised on, inter alia, a theory that the Victim was not a credible witness.

He presented testimony from, inter alia, himself, Mother, Connie, and one of

the Victim’s babysitters, Crystal.

        The jury convicted Appellant of two counts each of Involuntary Deviate

Sexual Intercourse with a Child (“IDSI”) and Attempted Rape of a Child, and

one count each of Rape of a Child and Aggravated Indecent Assault of a Child.1

Id. On November 21, 2014, the court sentenced Appellant to an aggregate

term of 25½ to 51 years of imprisonment.




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1   18 Pa.C.S. §§ 3123(b), 901(a), 3121(c), 3125(b), respectively.


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      Appellant filed a Post-Sentence Motion, which the court denied. This

Court affirmed the Judgment of Sentence. Commonwealth v. Leigh, No. 351

WDA 2015, unpublished memorandum at 19 (Pa. Super. filed Feb. 3, 2016).

      On December 19, 2016, Appellant timely filed a pro se PCRA Petition,

alleging that his trial counsel had been ineffective for, inter alia, failing to call

Appellant’s daughter as a witness. PCRA Petition, filed 12/19/16, at 4. He

annexed affidavits from, inter alia, his daughter to his Petition. Id. at Exh. 3.

       The court appointed counsel, and on October 6, 2017, the PCRA court

held an evidentiary hearing, at which Appellant, his daughter, and his trial

counsel, Mark Zearfaus, Esq., testified. Thereafter, the court denied

Appellant’s Petition. PCRA Opinion and Order, filed 7/11/18.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises a single issue on appeal: “[d]id the trial court err in

denying Appellant’s claims of ineffective assistance of counse[l]?” Statement

of Question Involved, Appellant’s Br. at 5.

      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

Courts 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.

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2012). “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.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014) (citation omitted). Moreover, “where a PCRA court’s credibility

determinations are supported by the record, they are binding on the reviewing

court.” Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999).

       Appellant contends that trial counsel was ineffective. We presume

counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).

To overcome this presumption, a petitioner must establish that: (1) the

underlying claim has arguable merit; (2) counsel lacked a reasonable basis for

his   act   or   omission;     and    (3)      petitioner   suffered   actual   prejudice.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to

establish prejudice, a petitioner must demonstrate “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. Koehler, 36 A.3d

121, 132 (Pa. 2012) (citation omitted). A claim will be denied if the petitioner

fails to meet any one of these prongs. Commonwealth v. Daniels, 963 A.2d

409, 419 (Pa. 2009).

       In his brief, Appellant contends that trial counsel was ineffective for

failing to call his daughter as a witness.2 Appellant’s Br. at 7. Appellant asserts

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2 Appellant raised four additional claims of ineffective assistance of counsel in
his PCRA Petition and Rule 1925(b) Statement but he has not raised or



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that her testimony would have discredited the Victim, specifically statements

the Victim made in the forensic interview with Cossaboom. Id. at 7-8. He

asserts that his daughter was willing and able to testify at trial, but counsel

was overconfident of an acquittal and did not believe it was necessary to call

Appellant’s daughter as a witness. Id. at 10-12.

       In order to establish ineffectiveness of trial counsel for the failure to call

a witness, a petitioner must establish:

       (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. Washington, 927 A.2d 586, 599 (Pa. 2007).

       At the PCRA hearing, Attorney Zearfaus testified that, although he

believed that Appellant’s daughter would have been a strong witness for the

defense, and had encouraged her to testify, she had informed him before trial

that she did not want to testify. N.T., PCRA Hearing, 10/6/17, at 55-56.

Attorney Zearfaus could not recall the reason Appellant’s daughter did not

want to testify, but stated that he ultimately did not call Appellant’s daughter

as a witness because of the risks related to calling an unwilling witness, such



____________________________________________


addressed them in his Brief. The four claims are, thus, waived.
See Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002)
(“an issue identified on appeal but not developed in the appellant's brief is
abandoned and, therefore, waived.”); Pa.R.A.P. 2116(a).

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as the possibility of unexpected testimony harmful to the defense. Id. at 56-

57.

      In contrast, Appellant and his daughter testified that she was willing to

testify on his behalf. Id. at 12, 33, 37, 39. Appellant’s daughter denied telling

Attorney Zearfaus that she did not want to testify, and recalled Attorney

Zearfaus telling her there was a possibility she would not be needed as a

witness. Id. at 40.

      The PCRA court found Attorney Zearfaus’s testimony more credible than

that provided by Appellant and Appellant’s daughter and, thus, concluded that

Appellant’s daughter was neither available, nor prepared, to cooperate and

testify for Appellant at trial. PCRA Opinion and Order at 23.

      The record supports the PCRA court’s credibility finding, and thus, we

defer to the court’s credibility determination. White, 734 A.2d at 381.

Because Appellant’s daughter was not willing to testify for the defense, and

trial counsel had a reasonable basis for not insisting that she testify, we

conclude the trial court did not err in finding that trial counsel provided

effective assistance of counsel

      Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/04/2019




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