J-S25017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ROEGESTER GRAYS                          :
                                          :
                    Appellant             :   No. 29 MDA 2019

         Appeal from the PCRA Order Entered December 20, 2018
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000787-2013

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED MAY 31, 2019

      Roegester Grays (Appellant) appeals from the order denying his petition

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

9546. We affirm.

      A prior panel of this Court detailed the facts and procedural history of

this case as follows:

         On March 1, 2013, at approximately 5:00 p.m., Appellant, who
      was driving a Chevrolet Avalanche (“Avalanche”) westbound on
      Route 328, collided head-on with a Chevrolet Suburban
      (“Suburban”), which was traveling eastbound on Route 328 and
      being driven by Ryan English. As a result of the crash, Mr. English
      and his wife, Karen English, were killed instantly, and their
      thirteen-year-old son, C.M., and four-year-old son, L.E., were
      injured. Their ten-year-old son, G.E., was not injured.

         Appellant was arrested and charged with numerous crimes. On
      November 21, 2013, he filed a lengthy counseled, pre-trial motion
      seeking, inter alia, to suppress his blood alcohol content (“BAC”)
      from blood that was drawn on March 1, 2013, at 9:20 p.m., after
      he was arrested by Pennsylvania State Police Trooper John J.
      Youngblood, to suppress the physical evidence seized by the
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     police from his vehicle, and to suppress pre-arrest statements
     Appellant made to Trooper Youngblood at the Arnot Ogden Medical
     Center (“Arnot Ogden”) Emergency Room in New York.

        Following a hearing held on January 7, 2014, by order and
     opinion filed on April 1, 2014, the trial court granted Appellant’s
     motion to suppress Appellant’s post-arrest BAC from the blood
     drawn at 9:30 p.m. upon request of Trooper Youngblood;
     however, the trial court denied Appellant’s motion to suppress the
     evidence obtained from the search of his vehicle and the evidence
     gained by the police at Arnot Ogden prior to Appellant’s arrest.
     Trial Court Order, filed 4/1/14.

        On July 25, 2014, Appellant filed an additional pre-trial
     omnibus motion in which he sought, inter alia, to suppress and/or
     preclude the Commonwealth from introducing Appellant’s medical
     records from Arnot Ogden, particularly Appellant’s pre-arrest BAC
     from blood drawn at 5:30 p.m. on March 1, 2013, by order of
     Appellant’s treating physician, Joseph Haluska, M.D. [(Dr.
     Haluska]), at the Arnot Ogden Emergency Room. Specifically,
     Appellant contended the medical records were obtained via an
     improperly issued and served subpoena, in violation of Appellant’s
     doctor-patient privilege, and inadmissible as there was no “paper
     trail” establishing blood was actually drawn by order of Dr.
     Haluska. The trial court denied Appellant’s motion.

                                *     *     *

          On November 16, 2015, the matter proceeded to a jury trial
     at which the parties stipulated that the death of Mr. and Mrs.
     English was caused by trauma incurred during the motor vehicle
     collision at issue. N.T., 11/16/15, at 32.

                                *     *     *

         At the conclusion of all testimony, the jury convicted Appellant
     of [two counts of homicide by vehicle while driving under the
     influence of alcohol (“homicide by vehicle–DUI”), one count of
     aggravated assault by vehicle while driving under the influence
     (“aggravated assault by vehicle–DUI”), two counts of homicide by
     vehicle, one count of aggravated assault by vehicle, two counts of
     driving under the influence-general impairment and high rate
     (“DUI”), and one count of possession of a controlled substance].
     Appellant filed a post-verdict motion alleging the verdicts were not

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       supported by sufficient evidence and/or the verdicts were against
       the weight of the evidence. By order entered on January 6, 2016,
       the trial court denied Appellant's post-verdict motions, and on
       January 7, 2016, Appellant proceeded to a sentencing hearing, at
       the conclusion of which he was sentenced to an aggregate of 252
       months plus 30 days in prison to 564 months in prison. Appellant
       was given 488 days of credit for time served, and he filed timely
       post-sentence motions, which were denied by operation of law on
       June 20, 2016. [A] timely counseled appeal followed.

Commonwealth v. Grays, 167 A.3d 793, 796-805 (Pa Super. 2017)

(citations and footnotes omitted), appeal denied, 178 A.3d 106 (Pa. 2018).

       On July 25, 2017, this Court affirmed Appellant’s judgment of sentence.

See id. at 796. On January 8, 2018, our Supreme Court denied Appellant’s

petition for allowance of appeal.

       On January 24, 2018, Appellant filed a pro se PCRA petition. On March

5, 2018, following the appointment of counsel, Appellant filed an amended

PCRA petition in which he raised numerous ineffective assistance of counsel

claims against trial counsel. On September 28, 2018, the PCRA court held a

hearing on Appellant’s petition.1         On December 20, 2018, the PCRA court

denied Appellant’s PCRA petition. This timely appeal followed.

       On appeal, Appellant presents the following issues for review:

       A.    Trial [c]ounsel was ineffective for failing to request a written
       report from Commonwealth witness Elizabeth Martin prior to trial
       addressing the conversion factor from serum blood to whole blood
       and in failing to request a continuance during trial to address this
       evidence when the conversion factor and Appellant’s blood alcohol
       level were key issues in Appellant’s trial.
____________________________________________


1 Trial counsel is deceased and was therefore unable to testify during
Appellant’s PCRA hearing.

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      B.    Trial [c]ounsel was ineffective for failing to challenge or
      present any claim prior to or during trial that Appellant’s pre-
      arrest blood draw was involuntary, performed without his consent
      and coerced when the Commonwealth failed to demonstrate
      Appellant voluntarily consented to the drawing and testing of his
      blood and trial counsel acknowledged his error by raising this issue
      in a Post-Sentence Motion that was deemed waived due to trial
      counsel’s failure to properly preserve the issue.

      C.    Trial [c]ounsel was ineffective for failing to properly advise
      Appellant regarding his sentencing exposure and in doing so,
      improperly convincing Appellant to reject a plea offer that would
      have resulted in a significantly reduced sentence.

      D.    Trial [c]ounsel was ineffective in failing to discuss character
      witness testimony with Appellant and in failing to call character
      witnesses on Appellant’s behalf when Appellant had available
      several effective character witnesses and the Commonwealth
      repeatedly argued Appellant was untruthful.

      E.     Trial [c]ounsel was ineffective for failing to object to an
      expert opinion offered on whether or not a medication
      administered to Appellant contained alcohol and could have
      affected Appellant’s blood alcohol level when Appellant’s blood
      alcohol level was a key element of the trial and the Commonwealth
      failed to qualify the witness to render said opinion or to request to
      admit the witness as an expert in this or any other field of
      expertise.

Appellant’s Brief at 4.

      We review the denial of PCRA relief by “examining whether the PCRA

court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). “Our 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 party who prevailed in the PCRA court proceeding.” Id.


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       Each   of   the   issues   Appellant    raises   challenges   trial    counsel’s

effectiveness. In deciding ineffective assistance of counsel claims, we begin

with   the    presumption     that   counsel     rendered    effective       assistance.

Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome

that presumption, the petitioner must establish: “(1) the underlying claim has

arguable merit; (2) no reasonable basis existed for counsel’s action or failure

to act; and (3) the petitioner suffered prejudice as a result of counsel’s error,

with prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.” Id. (citation omitted).

To demonstrate prejudice in an ineffective assistance of counsel claim, “the

petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim is subject to dismissal.

Bomar, 104 A.3d at 1188.

       In his first issue, Appellant argues that trial counsel was ineffective for

failing to request a written report before trial from the Commonwealth for

expert witness Elizabeth Martin, who testified regarding the conversion factor

used to determine Appellant’s BAC from his blood serum. Appellant asserts

that Appellant’s BAC was an important part of the Commonwealth’s burden of

proof, and trial counsel’s failure to obtain the report prevented trial counsel




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from effectively cross-examining Ms. Martin about the methodologies used to

obtain Appellant’s BAC.

     In rejecting this claim, the PCRA court explained:

        At trial, the System Director of Phlebotomy Services at Arnot
     Health Services, Elizabeth Martin, testified on behalf of the
     Commonwealth regarding the record of a medical blood draw
     made while [Appellant] was a patient at Arnot [Ogden], on the
     date of the accident. Ms. Martin provided testimony as to the
     serum alcohol blood levels and the conversion to a whole blood
     level required to determine a [person’s] alcohol content for
     criminal offenses.    Trial counsel objected claiming that the
     Commonwealth failed to provide a written report[,] as this was
     expert testimony.

        Pa.R.Crim.Proc. 573 provides that if the Commonwealth
     intends to call an expert who has not prepared a report, the court,
     upon motion, “may,” order such a report and provide same to [the
     defendant]. Here, no such motion was made. [Appellant] claims
     as a result of that, trial counsel was ineffective.

        First, there is no assurance that a report would have been
     ordered had a motion been made. Rule 573 provides that the
     court “may” order such report. Therefore, this claim has no merit.

        Second, [Appellant] is misinterpreting trial counsel’s objection
     by claiming trial counsel “acknowledged on the record that he
     needed a written report to effectively represent [Appellant].”
     [Amended PCRA Petition, 3/5/18, ¶ 34]. Rather, trial [counsel]
     stated his objection that the Commonwealth did not provide him
     with an expert report and that it was “a violation of his discovery,
     mandatory discovery requirements” under the rules. [N.T.],
     11/18/1[5,] [at] 60. He then stated that “I’m just trying to play
     by the rules." [N.T.], 11/18/1[5] [at] 61. A review of the
     transcript suggests that trial counsel then effectively cross[-
     ]examined the witness regarding the conversion factor. [N.T.],
     11/18/1[5], at 64-71.

         Finally, [Appellant] has not met the burden of showing that he
     suffered prejudice. [Appellant] has not offered any legal theories
     or pointed to any type of cross-examination regarding studies,
     different conversion rates or evidence that demonstrates the

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      outcome of trial would have been different. [Appellant] has
      presented no evidence that the conversion rate was incorrect or
      based upon an unrecognized study. [Appellant] has not presented
      any “discrepancies” in the witness’s opinion or testimony.

           Therefore, this claim has no merit.

PCRA Court Opinion, 12/20/18, at 2-4.

      Upon review, we conclude that the PCRA court did not abuse its

discretion in dismissing this ineffective assistance of counsel claim. Rule 573

of the Pennsylvania Rules of Criminal Procedure provides, in pertinent part, as

follows:

      (b) If an expert whom the attorney for the Commonwealth intends
      to call in any proceeding has not prepared a report of examination
      or tests, the court, upon motion, may order that the expert
      prepare, and that the attorney for the Commonwealth disclose, a
      report stating the subject matter on which the expert is expected
      to testify; the substance of the facts to which the expert is
      expected to testify; and a summary of the expert's opinions and
      the grounds for each opinion.

Pa.R.Crim.P. 573(B)(2)(b) (emphasis added).           Thus, as the PCRA court

correctly stated, there is no guarantee that had trial counsel filed a motion

seeking the preparation of a report for Ms. Martin’s testimony, the trial court

would have granted it, as the decision to do so lies in the court’s discretion.

See id.

      Additionally, we agree with the PCRA court’s conclusion that Appellant

failed to demonstrate that trial counsel’s failure to request a report for Ms.

Martin’s testimony resulted in prejudice.        As this Court has explained, to

establish the need for a new trial in the context of Rule 573, a defendant must


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demonstrate “that the introduction of the expert testimony caused him

prejudice to the degree that it affected his trial strategy or likely affected the

outcome of the proceedings.” Commonwealth v. Roles, 116 A.3d 122, 133

(Pa. Super. 2015).

      Appellant asserts that “[b]ecause trial counsel did not request a written

report, trial counsel was unable to research potential discrepancies in Ms.

Martin’s opinion, research other studies, determine whether the study cited

by Ms. Martin was the recognized standard and ask for a review of Ms. Martin’s

opinion by providing her report to an expert recognized in the field of serum

blood alcohol conversion.” Appellant’s Brief at 10-11. Although this may be

true, Appellant introduced no evidence before the PCRA court, scientific or

otherwise, to indicate that there was anything improper about the conversion

protocol employed by the Phlebotomy Department at Arnot Health Services.

Moreover, trial counsel, despite not having a report, was able to cross-

examine Ms. Martin on several of these topics. See N.T., 11/18/16, 64-71.

While a report may have aided trial counsel’s cross-examination of Ms. Martin,

there is no support for Appellant’s claim that the outcome of trial would have

been different. Accordingly, Appellant’s first issue does not merit relief.

      For his second issue, Appellant argues that trial counsel was ineffective

for failing to seek suppression of his pre-arrest blood draw conducted by the

medical staff at Arnot Ogden shortly after the accident; Appellant claims that




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the blood draw was involuntary and taken without his consent.2 Appellant

asserts that trial counsel should have sought suppression of the pre-arrest

blood draw on the basis of the United States Supreme Court’s decision in

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).

        “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d

781, 784 (Pa. Super. 2012). The “administration of a blood test ... performed

by an agent of, or at the direction of the government” constitutes a search

under     both     the    United     States      and   Pennsylvania   Constitutions.

Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa. 1992).                      “A search

conducted without a warrant is deemed to be unreasonable and therefore

constitutionally impermissible, unless an established exception applies.”

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000).                 “One such

exception is consent, voluntarily given.” Id. at 888-889.

        Our Supreme Court explained:

        While there is no hard and fast list of factors evincing
        voluntariness, some considerations include: 1) the defendant’s
        custodial status; 2) the use of duress or coercive tactics by law
        enforcement personnel; 3) the defendant’s knowledge of his right
        to refuse to consent; 4) the defendant’s education and
        intelligence; 5) the defendant’s belief that no incriminating


____________________________________________


2 As stated above, the trial court suppressed Appellant’s post-arrest blood
draw ordered by the Pennsylvania State Police later in the night of the
accident.

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      evidence will be found; and 6) the extent and level of the
      defendant’s cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,

opinion announcing the judgment of the court) (citing Commonwealth v.

Cleckley, 738 A.2d 427, 433 n.7 (1999)).

      In Birchfield, the United States Supreme Court addressed the

constitutionality of warrantless blood draws. Although the Court concluded

that warrantless blood draws are not permissible as searches incident to

arrest, the Court determined that they are nonetheless permissible under the

consent exception to the warrant requirement.      Birchfield, 136 S. Ct. at

2185-2186.     The Court explained that its “prior opinions have referred

approvingly to the general concept of implied-consent laws that impose civil

penalties and evidentiary consequences on motorists who refuse to comply

with BAC tests[.]” Id. at 2185.

      The Court further stated, however, that it is “another matter ... for a

State not only to insist upon an intrusive blood test, but also to impose

criminal penalties on the refusal to submit to such a test.” Id. It reasoned

that “[t]here must be a limit to the consequences to which motorists may be

deemed to have consented by virtue of a decision to drive on public roads.”

Id. Thus, the Court determined that “motorists cannot be deemed to have

consented to submit to a blood test on pain of committing a criminal offense.”

Id. at 2186.




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      Instantly, we conclude that trial counsel was not ineffective for failing to

raise a Birchfield challenge in Appellant’s suppression motion. Appellant filed

his suppression motions on November 21, 2013 and July 25, 2014 and his trial

took place in November 2015.        The United States Supreme Court decided

Birchfield on June 23, 2016, well after Appellant filed his suppression motions

and his trial concluded. As our own Supreme Court has explained, “[t]he law

is clear that counsel cannot be held ineffective for failing to anticipate a change

in the law.” Commonwealth v. Cox, 983 A.2d 666, 702 (Pa. 2009).

      Moreover, we recognize that Birchfield only applies to blood draws

ordered by law enforcement of persons under arrest at the time the blood

draw occurs.     See Commonwealth v. Myers, 164 A.3d 1162, 1172 (Pa.

2017) (explaining that Pennsylvania’s implied consent laws provide “the

statutory right of refusal to ‘any person placed under arrest’ for DUI”); see

also 75 Pa.C.S.A. § 1547(b)(1). In Myers, our Supreme Court held that a

warrantless blood draw of an unconscious individual who was under arrest at

the time of the blood draw was unconstitutional. Myers, 164 A.3d at 1181-

82. The Court emphasized that “the critical fact is not whether the motorist

is conscious, but whether the motorist is under arrest.” Id. at 1171 n.14.

Here, Appellant concedes that he was not under arrest when medical staff

conducted the blood draw. Thus, Birchfield is not applicable, and the PCRA

court did not abuse its discretion in denying this ineffective assistance of

counsel claim.


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      In his third issue, Appellant argues that trial counsel was ineffective for

improperly advising him about the potential length of his sentence. Appellant

asserts that trial counsel’s allegedly improper advice caused him to reject a

plea offer that he claims would have resulted in a far lesser sentence.

      It is well established that:

      a post-conviction petitioner seeking relief on the basis that
      ineffective assistance of counsel caused him or her to reject a
      guilty plea must demonstrate the following circumstance:

         [B]ut for the ineffective advice of counsel there is a reasonable
         probability that the plea offer would have been presented to
         the court (i.e., that the defendant would have accepted the
         plea and the prosecution would not have withdrawn it in light
         of intervening circumstances), that the court would have
         accepted its terms, and that the conviction or sentence, or
         both, under the offer’s terms would have been less severe than
         under the judgment and sentence that in fact were imposed.

Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (quoting

Lafler v. Cooper, 566 U.S. 156, 164 (2012)).

      We conclude that the trial court did not abuse its discretion in the

denying this ineffective assistance of counsel claim.     At his PCRA hearing,

Appellant testified about a letter sent by the Commonwealth to trial counsel

that invited trial counsel “to offer to settle the case for a five year minimum.”

N.T., 9/28/18, at 33, Exhibit 2 (Letter, 3/5/15). Appellant claimed that trial

counsel informed him that the Commonwealth did not have the evidence to

convict him of several offenses, and that he would receive, at most, a 10-year

sentence. Id. at 35. Appellant maintains this advice convinced him to go to

trial. Id. at 35-36. Appellant stated that had he known he had the potential

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to receive a minimum sentence of more than 20 years of incarceration, he

would have “deeply considered taking [the] plea.” Id.

      The PCRA court found that Appellant’s testimony was not credible,

noting that Appellant “has consistently claimed his innocence” throughout his

trial and continued to do so during PCRA proceedings. PCRA Court Opinion,

12/20/18, at 7. Indeed, Appellant admitted on cross-examination during his

PCRA hearing that he believed during his trial that he had no alcohol in his

system at the time of the accident and that he was not at fault for the accident.

N.T., 9/28/18, at 37-38. It is well settled that “[t]he PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.”

Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014). Based

on Appellant’s own assertions of innocence, both at trial and before the PCRA

court, the record clearly supports the PCRA court’s determination that

Appellant would not have pled guilty, as doing so would have required him to

forgo his assertions of innocence.     Consequently, Appellant has failed to

demonstrate that there was a reasonable probability that he would have

accepted a plea offer.   See Steckley, 128 A.3d at 832.        Appellant’s third

ineffective assistance of counsel claim is meritless.

      For his fourth issue, Appellant argues that trial counsel was ineffective

for failing to call character witnesses on his behalf after the Commonwealth

attacked his credibility at trial by stating during closing arguments that the

testimony of its witnesses was more believable than the Appellant’s testimony


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regarding what transpired during and immediately following the accident. We

have explained:

      It has long been the law in Pennsylvania that a defendant in a
      criminal case may introduce evidence of his reputation for
      truthfulness in but two circumstances. First, the accused may
      introduce evidence of his truthful character if the trait of
      truthfulness is relevant to the crime with which he has been
      charged.

      Second, the accused may introduce evidence of his truthful
      character if his reputation for truthfulness has first been attacked
      by the prosecution.

Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa. Super. 2010) (quotations

and citations omitted).

      There is no dispute that truthfulness was not relevant to the crimes at

issue. Thus, Appellant could only introduce evidence of his truthful character

if the Commonwealth attacked his reputation for truthfulness at trial.

Although Appellant points to several instances during closing when the

Commonwealth argued that the jury should believe the testimony of its

witnesses over the testimony of Appellant, he is unable to identify a single

instance where the Commonwealth attacked his reputation for truthfulness.

“[W]here the prosecution has merely introduced evidence denying or

contradicting the facts to which the defendant testified, but has not assailed

the defendant’s community reputation for truthfulness generally, evidence of

the defendant’s alleged reputation for truthfulness is not admissible.”

Commonwealth v. Kennedy, 151 A.3d 1117, 1128 (Pa. Super. 2016)

(quotations and citation omitted).    Thus, because evidence of Appellant’s

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reputation for truthfulness was not admissible at trial, trial counsel was not

ineffective for failing to call character witnesses on Appellant’s behalf, and the

trial court did not abuse its discretion in denying this ineffective assistance of

counsel claim.

      In his final issue, Appellant argues that trial counsel was ineffective for

failing to object to Dr. Haluska’s testimony. Appellant asserts that Dr. Haluska

improperly gave expert testimony indicating that there was no alcohol in

Dilantin — a narcotic and pain reliever that Dr. Haluska administered to

Appellant while treating Appellant in the emergency room of Arnot Ogden —

and that Dilantin and other medications Appellant received in the emergency

room would not have affected his BAC. Appellant contends that trial counsel

should have objected to this testimony because the Commonwealth never

qualified Dr. Haluska as an expert in the field of pharmaceuticals.

      Again, we conclude that the PCRA court did not abuse its discretion in

denying this ineffective assistance of counsel claim. Assuming, arguendo, that

trial counsel should have objected to Dr. Haluska’s testimony relating to

Dilantin and other medications Appellant received in the emergency room,

Appellant has failed to establish that he was prejudiced by the lack of

objection.   Appellant has presented no evidence that Dilantin contained

alcohol and that it would have affected Appellant’s BAC. Appellant also offers

no argument explaining how the Dilantin could have affected his pre-arrest

BAC when Dr. Haluska explicitly testified that he ordered Appellant’s BAC


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prior to administering any medications to Appellant. See N.T., 11/18/15, at

36. Thus, trial counsel’s failure to object, even if improper, does not provide

a sufficient basis to conclude that there was a reasonable probability that the

outcome at trial would have been different had trial counsel objected to Dr.

Haluska’s testimony. See King, 57 A.3d at 613. Appellant’s final ineffective

assistance of counsel claim does not merit relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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