J-S01038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                     Appellee               :
                                            :
              v.                            :
                                            :
 HARRY MICHAEL SZEKERES                     :
                                            :
                     Appellant              :        No. 306 MDA 2018


                 Appeal from the PCRA Order January 22, 2018
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0002247-2012


BEFORE:     PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:               FILED: JANUARY 29, 2019

      Harry Michael Szekeres (Szekeres) appeals from the order of the Court

of Common Pleas of Dauphin County (PCRA court) denying his first petition

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

9546, alleging ineffective assistance of trial counsel for failing to call character

witnesses. For the following reasons, we affirm.

      We take the relevant factual and procedural background from the PCRA

court’s opinion and our independent review of the certified record. On August

20, 2014, a jury convicted Szekeres of thirty-three counts involving the sexual




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01038-19


abuse of his daughter.1        As described by a previous panel of this Court in

Szekeres’s direct appeal:

              At trial, the jury heard testimony from the victim that
       Szekeres had sexually abused her from age seven to age 19. The
       victim testified that she had delayed reporting the abuse until she
       realized that she had nieces that were old enough for her father
       to victimize. The jury also heard a recorded phone conversation
       between the victim and Szekeres in which he admitted to making
       “a mistake touching my daughter.” The jury found Szekeres guilty
       on all 33 charges.

(Commonwealth v. Szekeres, 2015 WL 8805779, at *1 (Pa. Super. filed

Dec. 15, 2015) (unpublished memorandum), appeal denied, 145 A.3d 165

(Pa. 2016)).

       The trial court found Szekeres to be a sexually violent predator and

sentenced him to an aggregate term of not less than sixteen nor more than

thirty-two years’ imprisonment. The Superior Court affirmed the judgment of

sentence, and our Supreme Court denied further review. (See id.).

       On July 20, 2017, with the assistance of counsel, Szekeres filed his first

PCRA petition arguing that trial counsel was ineffective for failing to call




____________________________________________


1 He was charged with six counts of Involuntary Deviate Sexual Intercourse
(IDSI) (victim less than 16), and two counts of IDSI (forcible compulsion) 18
Pa. C.S. § 3125; twelve counts of Incest, 18 Pa. C.S. § 4302; six counts of
Aggravated Indecent Assault, 18 Pa. C.S. § 3125; two counts of Indecent
Assault, 18 Pa. C.S. § 3126; one count of Rape (forcible compulsion), 18 Pa.
C.S. § 3121; one count of Statutory Sexual Assault, 18 Pa. C.S. § 3122.1;
and four counts of Sexual Assault, 18 Pa. C.S. § 3124.1.


                                           -2-
J-S01038-19


character witnesses on his behalf. After a hearing, the PCRA court denied the

Petition because:

              . . . [Szekeres] did not present any potential character
       witnesses at the PCRA hearing. . . . [Therefore, he] has failed to
       meet his burden of demonstrating that these witnesses . . . were
       available to testify at [his] trial. [Szekeres] would have us believe
       that the people that submitted letters on his behalf prior to
       sentencing would have also been willing and available to testify at
       trial. However, [he] offered no objective proof to sustain this
       allegation as [Szekeres] called no witnesses at the PCRA
       hearing.

(PCRA Court Opinion, 1/22/18, at 3) (citations and footnotes omitted;

emphasis in original). This appeal followed.2



____________________________________________


2 “On appeal from the denial of PCRA relief, our standard of review calls for us
to determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Commonwealth v. Williams, 196 A.3d 1021, 1026
(Pa. 2018) (citation omitted).

              [C]ounsel is presumed to be effective, and the petitioner
       bears the burden of proving to the contrary. To prevail, the
       petitioner must plead and prove, by a preponderance of the
       evidence, the following three elements: (1) the underlying claim
       has arguable merit; (2) counsel had no reasonable basis for his or
       her action or inaction; and (3) the petitioner suffered prejudice as
       a result of counsel’s action or inaction. . . . Our review of counsel’s
       performance must be highly deferential. To establish the third
       element (prejudice), the petitioner 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. . . [I]f a
       claim fails under any necessary element of the ineffectiveness
       test, the court may proceed to that element first. . . .


Commonwealth v. Brown, 196 A.3d 130, 150-51 (Pa. 2018) (citations and
quotation marks omitted).


                                           -3-
J-S01038-19


      On appeal, Szekeres again contends that trial counsel was ineffective in

failing “to present good character reputation testimony,” resulting in his

inability to request a jury instruction that good character testimony can raise

a reasonable doubt as to guilt. (Szekeres’s Brief, at 24).

             When raising a claim of ineffectiveness for the failure to call
      a potential witness, a petitioner [must establish] that: (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. To
      demonstrate . . . prejudice, a petitioner must show how the
      uncalled witnesses’ testimony would have been beneficial under
      the circumstances of the case. Thus, counsel will not be found
      ineffective for failing to call a witness unless the petitioner can
      show that the witness’s testimony would have been helpful to the
      defense. A failure to call a witness is not per se ineffective
      assistance of counsel for such decision usually involves matters of
      trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations and

quotation marks omitted).

      Our review of the record supports the PCRA court’s finding that Szerekes

failed to establish that character witnesses were available for trial and, in any

event failed to establish that he was prejudiced by the failure to call such

witnesses even if they were available.

      At the evidentiary hearing, Szekeres merely speculated that the

individuals who provided letters on his behalf for sentencing “[a]bsolutely”

would have testified, under oath, and subject to cross-examination, at his

trial. (N.T. Hearing, 1/17/18, at 16). In spite of being given the opportunity


                                      -4-
J-S01038-19


to prove his claim, Szekeres failed to provide any testimony or other evidence

that these proposed trial witnesses were available and willing to testify on his

behalf. See Sneed, supra at 1109. Because he failed to do so, Szekeres

failed to meet his burden to prove that his underlying claim, that counsel was

ineffective for failing to call character witnesses on his behalf, merits relief.

See Brown, supra at 150-51.

      Szekeres also failed to prove that he was prejudiced by the lack of this

character evidence. In his direct appeal, Szekeres argued that the victim’s

failure to report the abuse for ten years rendered her testimony insufficient.

(See Szekeres, supra at *1). In rejecting this claim, we observed:

             . . . Even if we were to accept this argument, which we
      explicitly do not, Szekeres cannot overcome the inculpatory
      statements present in the recorded phone conversation with the
      victim.
             During the conversation, the victim repeatedly asked
      Szekeres why he had sexually abused her. Several times,
      Szekeres implicitly admitted that he had.                       (See
      Commonwealth’s Exhibit 2, at 7:20, 7:50, 8:45). He further
      admitted that he knew that what he had done was wrong. (See
      id. at 10:40).       The victim repeatedly asked Szekeres for
      reassurances that her child would be safe in [his] presence.
      Szekeres responded:
                 Hey it would never happen but . . . I don’t know how
          I can reassure you other than that I would . . . I want to
          be a part of the grandchildren’s lives . . . . I mean I would
          never touch your children. I’ve never touched any children
          you were not, I made a mistake touching my
          daughter. And it seemed like it was okay for some reason
          in my mind and I, I continued it for, for a few years,
          several years. I don’t know why, I don’t know why it
          happened I wouldn’t I would never touch anybody in
          any[]way other than the huge mistake I made when
          you were young . . . [D]o you know how many times I
          thought of taking my own life I, I could, but, but being the

                                      -5-
J-S01038-19


           coward I am I can’t do it. I can’t do it. I, I thought of now
           being here how many ways could I, could I steal life from
           myself, which I, which I deserve to, to let the rest of the
           family live and go on. And I just can’t make myself do it.
             (Id. at 11:40–13:15). These inculpatory statements are
       certainly sufficient to overcome any issues with the victim’s
       credibility. . . .

(Id. at **1-2) (some record citation formatting provided; emphases added).

       Even if Szekeres had provided objective evidence of the proposed

character witnesses’ willingness to testify at trial, he would still not be entitled

to PCRA relief because he failed to establish that “there is a reasonable

probability that the outcome of the proceedings would have been different” if

they had testified, because of his own inculpatory statements. See Brown,

supra at 150-51.3 Because the record supports the PCRA court’s denial of

Szekeres’s PCRA petition, its order is affirmed.

       Order affirmed.




____________________________________________


3 Szekeres’s reliance on Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992),
and Commonwealth v. Glover, 619 A.2d 1357 (Pa. Super. 1993), is
misplaced. In both of those cases, proposed character witnesses testified at
the PCRA hearings that they had been available to testify at the defendants’
trials, and that they would have provided good character testimony. See
Weiss, supra at 442, Glover, supra at 1358. However, here, Szekeres failed
to provide the testimony of any proposed character witnesses at the PCRA
hearing to support his claim.

                                           -6-
J-S01038-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/29/2019




                          -7-
