J-S08037-18


                                 2018 PA Super 60

 COMMONWEALTH OF                           :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                              :        PENNSYLVANIA
                                           :
                                           :
                v.                         :
                                           :
                                           :
 ERIC WAYNE SMITH                          :
                                           :   No. 1219 WDA 2017
                     Appellant

                  Appeal from the PCRA Order June 1, 2017
  In the Court of Common Pleas of Washington County Criminal Division at
                      No(s): CP-63-CR-0000054-2013


BEFORE:       LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                           FILED MARCH 19, 2018

      Appellant, Eric Wayne Smith, appeals from the order entered in the

Court of Common Pleas of Washington County denying his petition filed

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

9546. After a careful review, we affirm.

      This Court has previously set forth the facts underlying this case, in part,

as follows:

            In the late summer/early fall of 2012, [R.M.] (age 15),
      [K.C.] (age 12), and [S.D.] (no age of record) were ‘ding dong
      ditching’ in Lawrence, Washington County. When [R.M.]
      approached 20 Third Street to ring the doorbell, [Appellant]
      approached the three juveniles from the side of the house and
      asked them what they were doing. After [R.M.] explained the
      prank, [Appellant] offered to share some of his marijuana with the
      juveniles. [R.M.] called his girlfriend, [J.C.] (age 15), to bring a
      pipe for smoking the marijuana.



____________________________________
* Former Justice specially assigned to the Superior Court.
J-S08037-18


          When [J.C.] arrived, the four juveniles proceeded to a
     nearby park with [Appellant] to smoke the marijuana. While
     smoking together, [Appellant] told [R.M.] that he was gay, and
     wondered if [R.M.] knew anyone around [R.M.’s] age that was also
     gay.   When the juveniles asked [Appellant] about his age,
     [Appellant] initially stated that he was 27, then changed it twice
     more during the conversation.         Prior to leaving the park,
     [Appellant] provided his cell phone number to [J.C.] and [R.M.].
           Over the next month, [J.C.] texted [Appellant] frequently to
     obtain marijuana. On occasion, [J.C.] would bring her brother,
     [K.C.], with her to pick up the marijuana at [Appellant’s] residence
     or smoke it there with [him]. [Appellant] lived a short walking
     distance from [J.C. and K.C.’s residence]. [K.C.] began to stop by
     [Appellant’s] house alone to smoke marijuana. [Appellant] never
     charged the juveniles for the marijuana. On those occasions
     where [Appellant] would smoke with [J.C. and K.C.], it would
     always be outside his house.
           One evening in the fall of 2012[,] [K.C.] stopped at
     [Appellant’s] residence to smoke marijuana. [Appellant] invited
     him inside, and [K.C.] and [Appellant] smoked marijuana in
     [Appellant’s] living room. [K.C.] asked [Appellant] how he knew
     he was gay. [Appellant] asked [K.C.] if he was gay, to which [he]
     responded he was bisexual. [Appellant] asked [K.C.] if he wanted
     to engage in sexual activity, and [K.C.] said no. Despite this
     refusal, [Appellant] fondled [K.C.’s] genitalia over his clothes.
     [K.C.] immediately stood up to leave, but [Appellant] grabbed his
     pant leg, causing [K.C.] to fall to the ground. [Appellant]
     threatened [K.C.], and told him that if he told anyone what
     happened he would kill him.
           In December 2012, while admitted at Southwood Psychiatric
     Hospital, [K.C.] disclosed the incident to his therapists. Following
     a forensic interview and notification of law enforcement,
     [Appellant] was charged [with several offenses].
            On August 23, 2013, the trial court held a nonjury trial after
     which it found [Appellant] guilty of [indecent assault, false
     imprisonment, corruption of minors, and terroristic threats]. On
     December 6, 2013, the trial court sentenced [Appellant] to a total
     of six to twelve years of incarceration. [Appellant] did not file any
     post-sentence motions in this case. On January 3, 2014, he filed
     a timely notice of appeal.




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Commonwealth v. Smith, No. 42 WDA 2014, at 1-3 (Pa.Super. filed

11/17/14) (unpublished memorandum).

       On direct appeal, Appellant indicated in his “Statement of Questions

Involved” that he was challenging the sufficiency of the evidence supporting

his convictions. However, in the argument section of his brief, he challenged

solely the trial court’s credibility determinations. Thus, concluding Appellant

had improperly conflated weight and sufficiency of the evidence claims, and

no relief was due,1 we affirmed his judgment of sentence. See id. Appellant

filed a petition for allowance of appeal, which our Supreme Court denied on

June 16, 2015.

       On or about November 4, 2015, Appellant filed a timely pro se PCRA

petition, and the PCRA court appointed counsel to assist Appellant. On

September 14, 2016, PCRA counsel filed an amended petition, and on March

27, 2017, the matter proceeded to an evidentiary hearing. On June 1, 2017,

the PCRA court filed an order denying Appellant’s first PCRA petition in its

entirety. Following the reinstatement of Appellant’s PCRA appeal rights nunc

pro tunc,2 this appeal followed. The PCRA court directed Appellant to file a

____________________________________________


1 Appellant did not raise his weight of the evidence claim in the trial court, and
thus, it was waived on appeal.

2The Clerk of Courts failed to serve the PCRA court’s June 1, 2017, order upon
Appellant or his counsel. On July 19, 2017, Appellant filed a counseled second
PCRA petition seeking the restoration of his PCRA appeal rights nunc pro tunc.
Therein, Appellant averred that, on July 10, 2017, he discovered the PCRA



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Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA court

filed a responsive Pa.R.A.P. 1925(a) opinion.

       Appellant presents the following issues for our review:

       1. Whether this matter is properly before this Court where
          [Appellant] filed a PCRA petition seeking nunc pro tunc
          reinstatement of his appellate rights after the Clerk of Courts
          failed to serve a final order?
       2. Did the PCRA court err in finding that trial counsel was effective
          in advising [Appellant] to waive his jury trial rights and proceed
          nonjury and in failing to object to a defective on-the-record oral
          colloquy by Judge Borkowski?
       3. Did the PCRA court err in concluding that trial counsel provided
          effective assistance by erroneously advising [Appellant] not to
          testify based on his prior criminal history, where [Appellant’s]
          only crimen falsi crime was a conviction in 1987 and was
          inadmissible under Rule of Evidence 609 since the
          Commonwealth failed to provide notice under that rule?
       4. Whether the PCRA court erred in determining that trial counsel
          was effective in failing to present evidence that [Appellant]

____________________________________________


court had denied his first PCRA petition; however, due to the breakdown in
the court’s operation, he never received notice of the order. Appellant
admitted that the PCRA was the sole means through which he could have his
appeal rights reinstated, and that his second PCRA petition was untimely filed.
However, he sought to invoke the governmental interference and newly-
discovered fact exceptions provided for in 42 Pa.C.S.A. § 9545(b)(1)(i) and
(ii). The PCRA court agreed with Appellant and granted his second PCRA
petition, thus reinstating his right to appeal the denial of his first PCRA petition
nunc pro tunc. We find no error in this regard. See Commonwealth v.
Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007) (holding that PCRA court’s
erroneous notice to petitioner amounted to governmental interference
meeting timeliness exception to PCRA); Commonwealth v. Fairiror, 809
A.2d 396, 397 (Pa.Super. 2002) (holding all requests for reinstatement of
appellate rights, including PCRA appellate rights, must meet the timeliness
requirements or an exception thereto under the PCRA).




                                           -4-
J-S08037-18


           suffered from a hernia to show that it would have been
           physically impossible or extremely difficult for [Appellant] to
           have dragged the [victim] up the stairs as alleged?
        5. Whether the PCRA court erred in holding that trial counsel was
           effective in failing to present various text messages sent by two
           of the witnesses who testified against [Appellant] that would
           have attacked their credibility, including messages that showed
           that the [victim] stole [Appellant’s] wallet?
        6. Did the PCRA court err in finding that trial counsel rendered
           effective assistance on direct appeal by inadequately arguing
           [Appellant’s] sufficiency of the evidence claims where the
           evidence was insufficient to support the crimes?
        7. Whether the PCRA court erred in determining that trial counsel
           was effective in declining to challenge the weight of the
           evidence in a post-sentence motion[?]
        8. Whether, due to the cumulative errors of trial counsel,
           [Appellant] is entitled to a new trial?

Appellant’s Brief at 4-5.3

              When reviewing the denial of a PCRA petition, we must
        determine whether the PCRA court’s order is supported by the
        record and free of legal error. Generally, we are bound by a PCRA
        court’s credibility determinations. However, with regard to a
        court’s legal conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

        Furthermore,

              In order to be eligible for PCRA relief, the petitioner must
        prove by a preponderance of the evidence that his conviction or
        sentence resulted from one or more of the enumerated
        circumstances found in Section 9543(a)(2), which includes the
        ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
              It is well-established that counsel is presumed effective, and
        to rebut that presumption, the PCRA petitioner must demonstrate
____________________________________________


3   We have renumbered Appellant’s issues for ease of discussion.

                                           -5-
J-S08037-18


      that counsel’s performance was deficient and that such deficiency
      prejudiced him. To prevail on an ineffectiveness claim, the
      petitioner has the burden to prove that (1) the underlying
      substantive claim has arguable merit; (2) counsel whose
      effectiveness is being challenged did not have a reasonable basis
      for his or her actions or failure to act; and (3) the petitioner
      suffered prejudice as a result of counsel’s deficient performance.
      The failure to satisfy any one of the prongs will cause the entire
      claim to fail.

Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)

(quotation marks, quotations, and citations omitted).

            We need not analyze the prongs of an ineffectiveness claim
      in any particular order. Rather, we may discuss first any prong
      that an appellant cannot satisfy under the prevailing law and the
      applicable facts and circumstances of the case. Finally, counsel
      cannot be deemed ineffective for failing to raise a meritless claim.

Johnson, 139 A.3d at 1272 (citations omitted).

      In his first claim, Appellant argues the PCRA court properly reinstated

his PCRA appeal rights nunc pro tunc. As discussed supra, we agree and,

accordingly, we shall proceed to a review of Appellant’s remaining issues

presented.

      In his second claim, Appellant argues trial counsel was ineffective in

advising Appellant to waive his right to a jury trial and failing to object to the

Honorable Edward J. Borkowski’s defective on-the-record oral colloquy.

      Initially, we note the following relevant legal precepts:

           The right to trial by jury is enshrined in both the U.S. and
      Pennsylvania Constitutions. See U.S. Const. amend. VI; Pa.
      Const. art. I, § 6. The importance of the right is recognized by
      the procedural protections in Rule 620 of th[e]. . .Criminal
      Procedural Rules, which provides that:


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J-S08037-18


            In all cases, the defendant and the attorney for the
            Commonwealth may waive a jury trial with approval
            by a judge of the court in which the case is pending,
            and elect to have the judge try the case without a jury.
            The judge shall ascertain from the defendant whether
            this is a knowing and intelligent waiver, and such
            colloquy shall appear on the record. The waiver shall
            be in writing, made a part of the record, and signed
            by    the    defendant,    the    attorney    for    the
            Commonwealth, the judge, and the defendant’s
            attorney as a witness.
      Pa.R.Crim.P. 620.
                                   ***
            The essential elements of a jury waiver, though important
      and necessary to an appreciation of the right, are nevertheless
      simple to state and easy to understand. “The. . .essential
      ingredients, basic to the concept of a jury trial, are the
      requirements that the jury be chosen from members of the
      community (a jury of one’s peers), that the verdict be unanimous,
      and that the accused be allowed to participate in the selection of
      the jury panel.” Notwithstanding the Rule’s reference to a
      “colloquy on the record,” the use of a written jury trial waiver form
      has been deemed sufficient in the absence of an oral jury trial
      waiver colloquy.
            A waiver colloquy is a procedural device; it is not a
      constitutional end or a constitutional “right.” Citizens can waive
      their fundamental rights in the absence of a colloquy; indeed,
      waivers can occur by conduct or by implication, as in the case of
      a criminal trial conducted in absentia after the defendant fails to
      appear.

Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 696-97 (2008)

(footnote, citations, and quotation omitted).

      In addressing Appellant’s second issue, the PCRA court concluded there

was no merit to Appellant’s claim and/or counsel had a reasonable basis for

his action. In this regard, the PCRA court specifically indicated the following:




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           [Appellant] alleges that counsel did not have a reasonable
     basis for advising [him] to waive his right to a jury trial, which
     thereby caused prejudice to his case. He also alleges that despite
     a comprehensive colloquy being conducted by [the Honorable
     Katherine] Emery, the original judge assigned to the case, [ ]
     Judge Borkowski’s failure to perform a full colloquy on the record
     also caused him prejudice.
                                   ***
            [Appellant] addresses the third element [relating to
     prejudice] of the [ineffectiveness] test, but [he] ignores the other
     two [elements]. He alleges that but for trial counsel’s advice and
     the lack of an oral on-the-record colloquy in front of Judge
     Borkowski, he would have elected a jury trial. However, his claim
     fails the first and second elements of the [ineffectiveness] test:
     that [his] underlying claim—that he did not give a knowing and
     intelligent waiver—has any merit, and how counsel’s performance
     was deficient.
            Under a “totality of the circumstances” evaluation, it’s clear
     that [Appellant] gave a knowing and intelligent waiver and was
     sufficiently apprised of his right to a jury trial. . . .[T]he existence
     of a written colloquy is considered prima facie evidence that the
     waiver was informed and voluntary. None of the cases submitted
     by [Appellant] hold that a defendant must be given a thorough
     oral colloquy on the record in front of every judge he faces.
     [Appellant] moved to waive his right to a jury trial on May 30,
     2013, which was granted by Judge Emery. At the PCRA hearing,
     the [PCRA] court inquired with PCRA counsel whether he was
     contesting [Appellant’s] waiver of jury trial in front of Judge
     Emery:
           THE COURT: Okay. So you’re not contesting the
           validity of the waiver of the jury trial in front of Judge
           Emery; correct?
           [PCRA COUNSEL]: No, I am not.
     [N.T., 3/27/17, at 63.] Therefore, on the strength of th[is] waiver
     alone, trial counsel’s performance was sufficient.
            Also, the additional measures taken by trial counsel to
     apprise [Appellant] of his right to a jury trial show that [Appellant]
     made a knowing and intelligent waiver. At the PCRA hearing,
     [Appellant] admitted to being counseled by his trial attorney on
     his right to jury trial:



                                      -8-
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           [PCRA COUNSEL]: Did you and [trial counsel] discuss
           proceeding nonjury in front of Judge Borkowski?
           [APPELLANT]: We discussed it.         Because [trial
           counsel] told me that, you know it would be best to
           go, you know, first nonjury based on, you know, the
           fact that the victim was a child and my past history
           might come to play. Either I would open doors. And
           he said—told me that Judge Borkowski is a fair judge.
           And he didn’t see no harm in my doing so. So I, along,
           you know, with the advice of my counsel, I went with
           Judge Borkowski nonjury.
     Id. at 45. Trial counsel elaborated on the nature of his advice to
     [Appellant] regarding [Appellant’s] right to a jury trial:
           [ADA]: Okay. And you met with [Appellant] after your
           rehiring on July 11, 2015, and discussed with him
           whether or not he still wanted to waive his right to a
           jury trial; correct?
           [TRIAL COUNSEL]: It is. Except it was July of 2013.
           [ADA]: I am sorry. I misspoke. I said ’15, didn’t I?
           [TRIAL COUNSEL]: Right. Just for the record.
           [ADA]: Okay. So you did that?
           [TRIAL COUNSEL]: Yes.
           [ADA]: On multiple occasions?
           [TRIAL COUNSEL]: Yes.
           [ADA]: Okay. And when you did that, can I assume
           you went over the stuff you normally would at any
           time when you’re going over a case with a client? You
           would discuss with him his right to pick a jury?
           [TRIAL COUNSEL]: Yes.
           [ADA]: His absolute constitutional right to have a
           jury?
           [TRIAL COUNSEL]: Yes.
           [ADA]: And to make the Commonwealth prove to the
           jury beyond a reasonable doubt each and every
           element of the crime?
           [TRIAL COUNSEL]: Yes.
           [ADA]: And for the decision to be unanimous?

                                   -9-
J-S08037-18


          [TRIAL COUNSEL]: Yes.
          [ADA]: And that would also include who the jury pool
          would be made up of?
          [TRIAL COUNSEL]: Yes.
                                    ***
          [ADA]: Do you recall [Appellant] discussing with you
          why he wanted a nonjury trial prior to you being
          counsel?
          [TRIAL COUNSEL]: I generally remember [Appellant]
          saying that he felt as though it would be more fair and
          that it would lead to a better decision. I also recall
          that he had a great deal of confidence in his decision
          to go that route. As to the specific reasons behind his
          confidence, and that being the fair and best, you
          know, fact finder, I don’t specifically recall.
     Id. at 32-34.
          Also at the PCRA hearing, [Appellant] conceded that he was
     given a thorough oral colloquy in front of Judge Emery. His
     counsel elicited the following testimony:
          [PCRA COUNSEL]: Do you recall being placed on trial
          in this matter?
          [APPELLANT]: Yes, I do.
          [PCRA COUNSEL]: Do you recall waiving your right to
          a jury trial?
          [APPELLANT]: Yes, I do.
     Id. at 44.        Counsel for the Commonwealth fleshed out
     [Appellant’s] answer, thereby proving that he understood the
     court’s oral colloquy of his right to a trial by jury:
          [ADA]: [Appellant], you heard [trial counsel] testify;
          correct?
          [APPELLANT]: That is correct.
          [ADA]: And you also said on direct examination that
          you waived your right to a jury trial before [Judge]
          Emery; correct?
          [APPELLANT]: That is correct.
          [ADA]: Did she explain to you your right to a jury trial?
          [APPELLANT]: [Judge] Emery? Yes, she did. Yes.

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J-S08037-18


           [ADA]: So she went over all those things? It was a
           longer colloquy than Judge Borkowski about that?
           [APPELLANT]: Yes, sir.
           [ADA]: Okay. So you understood what you were
           giving up by waiving your right to a jury trial?
           [APPELLANT]: Yes.
           [ADA]: Okay. And you thought, well, [Judge] Emery
           is going to hear my case, I hear she’s a fair judge, I
           would like her to make the decision. Is that a fair
           summary?
           [APPELLANT]: Yes.
           [ADA]: Okay. So then you go before Judge Borkowski.
           And [trial counsel] tells you. . .Judge Borkowski is fair,
           too.
           [APPELLANT]: Yes.
           [ADA]: Okay. And that he’ll give you a fair shot?
           [APPELLANT]: Yes.
           [ADA]: Is that right?
           [APPELLANT]: Yes.
           [ADA]: And so, basically, for the same reasons you
           waived your right to a jury trial before Judge Emery,
           you waived your right to a jury trial before Judge
           Borkowski?
           [APPELLANT]: That is correct.
     Id. at 52-53.
            [Appellant’s] testimony at the PCRA hearing proves that he
     had a knowing and intelligent understanding of why he was
     waiving his right to a jury trial. He signed [a] waiver of the right
     to a jury trial, which was accepted following [an] oral colloquy on
     the record, is prima facie evidence of a knowing and intelligent
     waiver. Moreover, even if the waiver is deemed insufficient, the
     oral testimony of [Appellant] and trial counsel make it clear that
     [Appellant] believed that given the nature of the charges, he
     would have a more fair trial where the fact-finder is the judge.
     Therefore, applying the [merit prong] of the [ineffectiveness] test,
     [Appellant] fails to show that his underlying claim, that he did not
     give a knowing and intelligent waiver of a jury trial, has any merit.


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             Similarly, applying   the  second    element  of  the
      [ineffectiveness] test, trial counsel testified that, in his
      experience, crimes of sexual violence inflame the jury and
      prejudice [a defendant]:
            [ADA]: But do you recall discussing with him the fact
            that if you presented the case before a jury, you felt
            that they could be, let’s say, blinded or inflamed by
            the underlying allegations of the Commonwealth;
            whereas, a judge, and specifically Judge Borkowski,
            who has significant experience in criminal cases,
            would not let that affect his judgment?
            [TRIAL COUNSEL]: Exactly, I think that I’ve
            experienced on several occasions jurors who are
            offended by the mere nature of the allegations and
            turned off by the mere nature of the allegations. And
            then, frankly, they start to visibly size up your client.
            You can see it happening.
      Id. at 34. Clearly, trial counsel had valid reasons to advise
      [Appellant] to not purse a jury trial. He reasoned that [Appellant]
      would receive a more fair trial in front of a judge than a jury and
      gave that reasoning to his client, who, as shown in the
      aforementioned testimony, agreed.
             Taking all of the evidence into consideration, [Appellant]
      fails the first and second elements of the [ineffectiveness] test.
      In regard to the first, [Appellant] had a clear understanding of
      why he was waiving his right to a jury trial, he was given a
      thorough oral colloquy in front of the first assigned judge, he was
      counseled by his trial counsel, and the second assigned judge
      gave a brief oral colloquy. In regard to the second prong, trial
      counsel gave sound reason[s] for why he advised [Appellant] to
      waive his right to a jury trial: juries often prejudge [defendants]
      who are charged with violent sex crimes and have difficulty setting
      aside their emotions.

PCRA Court Opinion, filed 6/1/17, at 7-12.

      We agree with the sound reasoning of the PCRA court, and accordingly,

we conclude Appellant is not entitled to relief on this ineffective assistance of

counsel claim.


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      In his third claim, Appellant contends trial counsel was ineffective in

advising him not to testify based on his prior criminal history/bad acts.

Appellant specifically contends that counsel inaccurately informed him that, if

he testified, he could be impeached with his prior criminal history. Appellant

contends that, absent this advice, he would have testified at trial.

      It is well-settled that:

             The decision of whether or not to testify on one’s own behalf
      is ultimately to be made by the defendant after full consultation
      with counsel. In order to sustain a claim that counsel was
      ineffective for failing to advise the appellant of his rights in this
      regard, the appellant must demonstrate 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. Nieves, 560 Pa. 529, 746 A.2d 1102, 1104 (2000)

(citations omitted).

      During the PCRA hearing, trial counsel testified as follows regarding his

advice to Appellant as to his right to testify:

      [PCRA COUNSEL]: And do you recall whether [Appellant] testified
      during his trial?
      [TRIAL COUNSEL]: He did not.
      [PCRA COUNSEL]: And can you tell us what advice you gave to
      [Appellant] regarding his decision to testify or not testify?
      [TRIAL COUNSEL]: Yes. Some of the advice is advice that I give
      to any client who may be going to trial or his going to trial. And
      that is that it’s up to him as to whether or not he testifies.
             I tell clients that they have certain decisions that are
      completely within their domain and not mine. And those would
      include whether or not to go to trial. If they go to trial, whether
      it’s a jury or a bench trial. . . .And whether or not they would
      testify at trial. So I would tell him that ultimately it’s up to him.


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            I discussed with [Appellant] whether he wanted to testify at
     trial. We had fairly extensive conversations about that. By “fairly
     extensive conversation,” I don’t mean hours. I mean, that they
     went on for a significant amount of conversation.
            I offered my opinion. And my opinion was that he should
     not testify. Although I did tell him, as I would tell any client, that
     they can always change their mind up until we close our case in
     chief. That that right remains with them until we close our case
     in chief.
          Did you ask why did I tell him or just whether I told him—I
     suggested?
     [PCRA COUNSEL]: I asked whether—and I think I may have asked
     why.
     [TRIAL COUNSEL]: Would you like me to elaborate on why?
     THE COURT: I certainly would.
     [TRIAL COUNSEL]: Okay. Thank you. I didn’t want to answer
     something that wasn’t asked.
     [PCRA COUNSEL]: That would have been my next question.
     [TRIAL COUNSEL]: Okay. I suggested that he did not testify
     primarily-well, there’s what I told him and there’s also what I fully
     thought.    I didn’t want to irreparably damage my client’s
     relationship by him thinking that I was insulting him.            So
     sometimes I give them a softer version of what I think.
           But, essentially, I informed him and thought that he would
     not make a good witness. In my judgment in talking with him on
     multiple occasions at the jail, he was not a good communicator.
     He was not a good speaker. And it would affect his credibility.
           He speaks very fast. He has trouble staying on track. And
     in cases like this, with a child sexual assault where you have a he
     said, he said, if you elect to take the stand, you have to be a very
     good witness. Once you take the stand, you are opening up
     yourself to giving the Commonwealth greater facts towards their
     proof beyond a reasonable doubt.
           I thought [Appellant] would do that by being a poor witness,
     by being a poor communicator, and lacking some credibility.
            By lacking credibility, I mean that—I think that if you don’t
     directly confront those facts which are alleged against you, then
     that lessens your credibility. And I thought that [Appellant] had
     that problem in this case.

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          And then once that happens, then your lack of credibility
     becomes [the] Commonwealth’s evidence for proof beyond a
     reasonable doubt.
            I thought the victim in this case, by comparison, had serious
     challenges to his credibility. So why undermine our attack on the
     victim’s credibility by putting on a less than credible defendant in
     this case.
            That was the primary reason why I advised against him
     testifying at trial.
     [PCRA COUNSEL]: That was the primary reason, but it wasn’t the
     reason you told him because you didn’t want to damage your
     relationship?
     [TRIAL COUNSEL]: No. I did mention to him that I thought he
     would not make a good witness.
     [PCRA COUNSEL]: Okay.
     [TRIAL COUNSEL]: I’m just saying that the way I just expressed
     it to you is probably not entirely consistent to what I expressed—
     the way I expressed it to him.

N.T., 3/27/17, at 10-13.

     Trial counsel further testified that Appellant informed him he had a

hernia and desired to use that as a defense.       Id. at 18.    Trial counsel

explained:

            I also thought that—I was concerned that [Appellant]—
     throughout our conversations—the manner in which he would
     raise this before the judge.
            For example, he had attempted to show me, on more than
     one occasion, the hernia, which I believe is in a private, if not
     genital area. And in a case of this nature, a child sexual assault,
     there is a concern that your client—that [Appellant], when they
     testify, might testify, act, and behave on the stand in a manner
     consistent with which they are charged. That they might not
     understand boundaries. They might act inappropriately.
           I had a real concern in this case that [Appellant] would get
     on the stand and insist upon showing this to the court in a way
     that would appear to not only be inconsistent—or inappropriate


                                    - 15 -
J-S08037-18


      with court decorum, but might also demonstrate him to Judge
      Borkowski as somebody who doesn’t understand normal human
      social boundaries and possibly normal sexual boundaries.
            So there is a concern that he would act in a way that was
      too consistent with what he was charged, and I wanted to avoid
      that. And that was also based upon my overall conversations with
      [Appellant] and my judgment with him as a potential witness.

Id. at 19.

      Trial counsel confirmed that he was also concerned that Appellant might

“open the door” for him to be impeached with his prior crimes and/or bad

acts; however, trial counsel testified this was not a prevailing concern in this

case. Id. at 16. Rather, trial counsel indicated “the primary concern with him

was that I just did not think he would be a good witness, and I thought he

would be a poor witness for us.” Id. Trial counsel testified that, although he

had no specific recollection of discussing specific past crimes relative to

Appellant, he could “say with confidence that [he] did not tell [Appellant] to

not testify because of a 1987 retail theft conviction.” Id. at 17.

      Appellant, on the other hand, testified at the PCRA hearing on direct-

examination that it was his intention to testify and he would have done so if

trial counsel had not told him his prior bad acts, including his past homicide

or 1987 theft conviction, could be introduced if he testified. Id. at 46-48.

However, upon cross-examination by the ADA, Appellant admitted that trial

counsel informed him that he believed Appellant should not testify because he

would not “be a good witness” or “come across [as] credible.” Id. at 63.




                                     - 16 -
J-S08037-18


      Based on the aforementioned, the PCRA court found trial counsel’s

testimony to be credible and determined “[Appellant] was advised that the

main reason he shouldn’t testify is because he would make a bad witness.”

PCRA Court Opinion, filed 6/1/17, at 15. Further, the PCRA court noted that

trial counsel testified he advised Appellant not to testify, in part, because he

had concerns that Appellant would act inappropriately as it related to his

hernia, which was located in Appellant’s private area, thus demonstrating to

the trial court that he lacks appreciation for “normal human social boundaries

and possibly normal sexual boundaries.” Id. at 19.

      The PCRA court concluded “[Appellant’s] allegations that trial counsel

advised him not to testify based on his criminal history is without merit. While

trial counsel credibly testified that ‘prior bad acts,’ not [Appellant’s] criminal

history, were mentioned, [Appellant’s] recollection of their discussions are

tentative and lack credibility.” Id. at 16. Further, the PCRA court concluded

“[t]he testimony produced at the PCRA hearing demonstrates that trial

counsel did not advise [Appellant] not to testify because of his criminal

history[.] Trial counsel credibly testified that the primary concern was

[Appellant’s] poor presentation as a witness, which [Appellant] admitted was

communicated to him.” Id. at 18. Thus, the PCRA court found no merit to

Appellant’s underlying claim. Id.

      We are bound by the PCRA court’s credibility determinations.           See

Johnson, supra. Moreover, we agree with the sound reasoning of the PCRA


                                     - 17 -
J-S08037-18


court, and accordingly, we conclude Appellant is not entitled to relief on his

ineffective assistance of counsel claim.

      In his fourth claim, Appellant contends trial counsel was ineffective in

failing to present evidence that he suffered from a hernia that made it

physically impossible, or at least extremely difficult, for him to have dragged

the victim up the stairs as alleged by the Commonwealth. We conclude

Appellant is not entitled to relief.

      In rejecting Appellant’s claim, the PCRA court concluded, inter alia, that

Appellant failed to prove he was prejudiced by the absence of the evidence at

trial. Specifically, the PCRA court relevantly indicated the following:

            [Appellant] alleges that the evidence of the hernia would
      have “significantly called into question the heart of the [victim’s]
      claims” and “certainly would have led to a reasonable probability
      of a different outcome[.]” His logic is that if evidence of a hernia
      was presented, he would not have been able to engage in the acts,
      [which he was] accused of, and would have been acquitted
      thereof. However, in order to demonstrate prejudice, he must
      prove that the outcome of the trial would have been different.
             The court finds that presentation of the evidence of
      [Appellant’s] alleged hernia would not have changed the outcome
      of the case. [Appellant] was found guilty [on] five [counts]: false
      imprisonment, 18 Pa.C.S.A. § 2903(a), terroristic threats, 18
      Pa.C.S.A. § 2706(a)(1), corruption of minors, 18 Pa.C.S.A. §
      6301(a)(1)(i), corruption of minors, 18 Pa.C.S.A. § 6301(a)(ii),
      and indecent assault, 18 Pa.C.S.A. § 3126(a)(8). However, he
      was acquitted of the two most serious felony sex offenses: sexual
      assault, 18 Pa.C.S.A. § 3124.1, and statutory sexual assault, 18
      Pa.C.S.A. § 3122.1. Based on the testimony of his physical
      limitations as a result of the hernia, [Appellant] could [still] have
      performed the acts of which he was convicted. Only the two
      crimes he was acquitted of might have required [Appellant] to
      have been without the alleged hernia. Thus, even if evidence of
      the alleged hernia had been presented, it would not have affected
      the outcome of the case.

                                       - 18 -
J-S08037-18



PCRA Court Opinion, filed 6/1/17, at 20-21 (citation to record omitted).

      We agree with the sound reasoning of the PCRA court, and accordingly,

we conclude Appellant is not entitled to relief on his ineffective assistance of

counsel claim. See Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d

523, 533 (2009) (holding a petitioner establishes prejudice when he

demonstrates “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different”)

(quotation marks, quotation, and citation omitted)). Here, the record reveals

that, aside from the testimony related to Appellant dragging the victim up the

stairs, there was extensive testimony establishing that Appellant committed

the crimes for which he was convicted.         Thus, the PCRA court properly

conclude that, even if counsel had introduced the evidence that Appellant had

a hernia, there is no reasonable probability that the introduction of such

evidence would have altered the outcome of the trial. Thus, Appellant is not

entitled to relief on this claim. See id.

      In his fifth claim, Appellant contends trial counsel was ineffective in

failing to present various text messages, which two Commonwealth witnesses

sent to Appellant. He contends the text messages would have impeached the

witnesses’ credibility. Specifically, he alleges:

      These text messages would have demonstrated that the [victim’s]
      sister, [J.C.], who testified against [Appellant], repeatedly lied to
      [Appellant] about her age as did her boyfriend, [J.M.], who also
      testified against [Appellant]. The text message evidence also
      would have revealed that the [victim] had stolen [Appellant’s]

                                      - 19 -
J-S08037-18


      wallet and could have led to the admission of [the] evidence that
      the [victim] called [Appellant] a racial epithet and said that he was
      going to make a false allegation against [Appellant].

Appellant’s Brief at 29.

      In rejecting Appellant’s claim, the PCRA court found there was no merit

to Appellant’s underlying claim that such text messages existed. Moreover,

the PCRA court concluded Appellant failed to prove he was prejudiced by the

absence of the evidence at trial.     Specifically, the PCRA court relevantly

indicated the following:

            With regard to the first element [of the ineffectiveness test],
      [Appellant] has failed to show that there are text messages in
      existence that would have supported his case.             Therefore,
      [Appellant] cannot prove that his claim has arguable merit. With
      regard to the third element, [Appellant] has produced insufficient
      evidence to prove that the evidence would change the outcome of
      the case.
           [Appellant] alleges that the text messages exist and that
      they would exonerate him, but he gave very few details
      concerning their substance or why he never presented them to his
      counsel. At the PCRA hearing, he was questioned by the
      Commonwealth regarding their substance and whereabouts:
            Q. Did you have the text messages?
            A. No, I can’t subpoena—
            Q. No, I mean, you have them. You were interacting
            with them. Did you have the text messages?
            A. Well, I have them on my computer.
            Q. Did you ever tell [trial counsel], I have them on my
            computer?
            A. Yes.
            Q. So when he said he never heard—or remembered
            ever talking to you about text messages, that isn’t
            true?
            A. No, it’s not true.


                                     - 20 -
J-S08037-18


          Q. Okay. Are they still on your computer?
          A. They should be on my computer.
          Q. You never provided them to [PCRA counsel] or any
          other attorneys in these years that have passed, these
          text messages that would exonerate you?
          A. Well, I’ve been trying for the longest time. I just
          recently got [PCRA counsel] about maybe five, six
          months ago.
          Q. So where are the—the computer messages, they’re
          still—
          A. They’re at my mom’s house.
          Q. Wouldn’t it have been nice to give them to [PCRA
          counsel] to show them here today that you had them
          and it would exonerate you?
          A. Well, my mom, she’s hardly ever home anyway,
          you know. So—but like I said, they’re there. I mean,
          they have been there, we wouldn’t be having this
          conversation. I mean they’re there regardless.
     [N.T., 3/27/17, at 56-57.] Additionally, the [PCRA] court posed
     several questions to [Appellant] concerning the alleged texts:
          THE COURT: Your computer is still there? Your mom
          still lives in the house?
          THE WITNESS: Yes, ma’am.
                              ***
          THE COURT: These texts that you’re claiming that
          [J.C.] sent to you, is this regarding her brother
          stealing your wallet? What exactly is in the texts that
          you think would have helped you?
          THE WITNESS: Well, he had stolen my wallet, and I
          had text [J.C.] back, I said, your brother stole my
          wallet. And she said, well, let me go see.
                So, she texted back, she says, yes, I do have it.
          She described everything, and I said, yeah, that’s it.
          And she said, well, I’ll bring it up. Do you have a
          cigarette?
                I said, sure, no problem.          I’ll give you a
          cigarette. And she brought it up. And when she
          brought it up, I told [J.C.], I says, because I’m friends

                                    - 21 -
J-S08037-18


           with you, I’m not going to go to the police and get him
           in trouble, but I do not want that kid up here again.
           If he comes up here again, if I see him stealing
           anything, I will call the police and have him arrested.
     Id. at 60.
          In contrast, trial counsel testified that he didn’t remember
     ever having a discussion with [Appellant] regarding any text
     messages:
           Q. Did [Appellant] indicate to you that he had text
           messages from Commonwealth witnesses that
           somehow would allow you to impeach their credibility?
           A. I don’t recall that. Although—I also don’t recall-
           unlike the hernia-
           Q. Yes.
           A.—that I was presented with that and elected not to
           go forward with it.
                 I recall discussing the hernia, thinking about
           whether we should pursue that via [Appellant] or
           records, and electing against that tactically. I don’t
           have [a] recollection of having that same thought
           process about text messages pretrial.
           Q. Meaning you don’t recall it even being mentioned
           to you?
           A. No. I don’t recall. I just don’t recall the issue before
           trial.
           Q. Okay. After trial did he ever bring to your attention
           that he had some text messages that would somehow
           impeach the credibility of the Commonwealth’s
           witnesses?
           A. Not that I recall.
     Id. at 36-37.
           Based on the testimony, it doesn’t appear that the text
     messages exist. Despite them supposedly being accessible on his
     mother’s computer, [Appellant] never gave them to trial counsel
     or PCRA counsel. The only excuse he could muster is that his
     mom is “hardly ever home anyway.” If [Appellant] truly believed
     the text messages would support his innocence, he certainly
     would have found time over the last five years to get the messages
     and present them to counsel.

                                     - 22 -
J-S08037-18


             In addition, it is not clear why [Appellant] believes these
       text messages would prove that he is innocent. Presumably,
       [Appellant] thinks that the text demonstrate that the victim stole
       money from him, which he believes would somehow impeach the
       victim or provide the victim a motive to fabricate the entire story.
       However, the court is not convinced. Without production of the
       text messages or more details regarding what they say, there is
       no way for the court to know whether the outcome of the case
       would have been different had they been introduced. There is no
       evidence      other   than     [Appellant’s]   unbelievable     and
       unsubstantiated claims that the texts exist. Moreover, even if the
       texts did prove that the victim stole from [Appellant], the court
       finds little credence to [Appellant’s] assertion that the victim
       would fabricate such heinous acts in order to avoid being charged
       with [a] minor theft charge.

PCRA Court Opinion, filed 6/1/17, at 21-24.

       We are bound by the PCRA court’s credibility determinations.           See

Johnson, supra. Moreover, we agree with the sound reasoning of the PCRA

court, and accordingly, we conclude Appellant is not entitled to relief on his

ineffective assistance of counsel claim.

       In his sixth claim, Appellant contends direct appeal counsel was

ineffective in failing to properly brief on appeal his claim that the evidence was

insufficient to sustain his convictions.       Assuming, arguendo, Appellant has

demonstrated that appellate counsel’s performance was deficient in the

manner in which he presented the issue on direct appeal,4 we conclude


____________________________________________


4As Appellant accurately argues, on direct appeal, this Court concluded that
appellate counsel “confused” a challenge to the sufficiency of the evidence
with a challenge to the weight of the evidence. Thus, we concluded that
appellate counsel’s brief “raised sufficiency claims in which he presents weight



                                          - 23 -
J-S08037-18


Appellant has failed to demonstrate the necessary prejudice. Accordingly, he

is not entitled to relief on his ineffectiveness claim.

       In reviewing sufficiency claims, we note:

              The standard we apply in reviewing the sufficiency of
              the evidence is whether viewing all the evidence
              admitted at trial in the light most favorable to the
              verdict winner, there is sufficient evidence to enable
              the fact-finder to find every element of the crime
              beyond a reasonable doubt. In applying the above
              test, we may not weigh the evidence and substitute
              our judgment for [that of] the fact-finder. In addition,
              we note that the facts and circumstances established
              by the Commonwealth need not preclude every
              possibility of innocence. Any doubts regarding a
              defendant’s guilt may be resolved by the fact-finder
              unless the evidence is so weak and inconclusive that
              as a matter of law no probability of fact may be drawn
              from      the    combined       circumstances.      The
              Commonwealth may sustain its burden of proving
              every element of the crime beyond a reasonable doubt
              by means of wholly circumstantial evidence.
              Moreover, in applying the above test, the entire record
              must be evaluated and all evidence actually received
              must be considered. Finally, the trier of fact while
              passing upon the credibility of witnesses and the
              weight of the evidence produced, is free to believe all,
              part or none of the evidence.

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa.Super. 2013) (quotation

marks and quotation omitted).




____________________________________________


of the evidence arguments, [and thus] his sufficiency claims must fail.”
Commonwealth v. Smith, No. 42 WDA 2014, 6 (Pa.Super. filed 11/17/14)
(unpublished memorandum) (footnote omitted).


                                          - 24 -
J-S08037-18


       Appellant    avers    the   victim’s    testimony   was   so   unreliable   and

contradictory that the entire verdict is based on no more than surmise or

conjecture. Citing to Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d

1167 (1993), Appellant contends the victim’s testimony falls within the

inherently unreliable standard and, therefore, was insufficient to support the

trial court’s verdicts.5 In this vein, Appellant notes that the victim did not

____________________________________________


5  Appellant was convicted of indecent assault under 18 Pa.C.S.A. §
3126(a)(8), which provides, in relevant part:
       A person is guilty of indecent assault if the person has indecent
       contact with the complainant, causes the complainant to have
       indecent contact with the person or intentionally causes the
       complainant to come into contact with seminal fluid, urine or feces
       for the purpose of arousing sexual desire in the person or the
       complainant and:
                                        ***
       (8) the complainant is less than 16 years of age and the person is
       four or more years older than the complainant and the
       complainant and the person are not married to each other.
18 Pa.C.S.A. § 3126(a)(8).
       He was convicted of false imprisonment under 18 Pa.C.S.A. § 2903(A),
which provides, in relevant part, that “a person commits a misdemeanor of
the second degree if he knowingly restrains another unlawfully so as to
interfere substantially with his liberty.” 18 Pa.C.S.A. § 2903(A). He was also
convicted of corruption of minors under 18 Pa.C.S.A. § 6301(A)(1)(i) and (ii),
which provides, in relevant part:
       (1) (i) Except as provided in subparagraph (ii), whoever, being of
       the age of 18 years and upwards, by any act corrupts or tends to
       corrupt the morals of any minor less than 18 years of age, or who
       aids, abets, entices or encourages any such minor in the
       commission of any crime, or who knowingly assists or encourages
       such minor in violating his or her parole or any order of court,
       commits a misdemeanor of the first degree.
       (ii) Whoever, being of the age of 18 years and upwards, by any
       course of conduct in violation of Chapter 31 (relating to sexual
       offenses) corrupts or tends to corrupt the morals of any minor less



                                          - 25 -
J-S08037-18


report the alleged assault until after he committed delinquent acts of burglary,

and the victim failed to disclose initially that he returned to Appellant’s home

after the alleged assault.

       While challenges based on inconsistent testimony generally implicate

the weight of the evidence, in Karkaria, supra, our Supreme Court observed

the following with respect to testimony and sufficiency of the evidence.

       Normally, the evidence is deemed to be sufficient where there is
       testimony offered to establish each material element of the crime
       charged and to prove commission of the offense by the accused
       beyond a reasonable doubt. The question of credibility is left to
       the [finder of fact] and the verdict will not be disturbed if the
       [finder of fact] determines the evidence is worthy of belief.
       We have, however, made exception to the general rule that the
       [finder of fact] is the sole arbiter of the facts where the testimony
       is so inherently unreliable that a verdict based upon it could
       amount to no more than surmise or conjecture.

Karkaria, 625 A.2d at 1170.

       Contrary to Appellant’s contention, we do not agree that the verdict was

based on conjecture or that the victim’s testimony was so inherently unreliable

as to render the verdict unsupportable. The victim’s delay in reporting the



____________________________________________


       than 18 years of age, or who aids, abets, entices or encourages
       any such minor in the commission of an offense under Chapter 31
       commits a felony of the third degree.
18 Pa.C.S.A. § 6301(A)(1)(i), (ii). Moreover, he was convicted of terroristic
threats under 18 Pa.C.S.A. § 2706(A)(1), which provides, in relevant part,
that “[a] person commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to: (1) commit any crime
of violence with intent to terrorize another[.]” 18 Pa.C.S.A. § 2706(A)(1).


                                          - 26 -
J-S08037-18


sexual assault, as well as the fact he returned to Appellant’s home after the

sexual assault, were facts to be weighed by the trial court in determining the

victim’s credibility.   This is not a case, such as Karkaria, in which the

Commonwealth’s case was based upon the testimony of a witness whose

testimony was so inconsistent as to be completely irreconcilable, and the

finder of fact would have had to guess which version of the story to believe.

Accordingly, Appellant is not entitled to relief on his ineffectiveness claim.

      In his seventh claim, Appellant contends trial counsel was ineffective in

failing to file a post-sentence motion preserving his weight of the evidence

claim for appellate review. We find Appellant is not entitled to relief.

      It is well-settled that a weight of the evidence claim must be preserved

in a motion before the trial court, and that this Court will only review the trial

court’s exercise of discretion in considering whether a new trial is necessary.

See Pa.R.Crim.P. 607; Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d

483, 494 (2009).

      With respect to a claim of ineffective assistance of counsel regarding the

failure to file post-sentence motions, our Supreme Court has maintained the

following:

      [There is a] distinction between errors which completely foreclose
      merits review and those which merely “narrow its ambit.” Thus,
      [the Court] [has] held an attorney’s failure to file a post-sentence
      motion preserving a particular sentencing claim “did not operate
      to entirely foreclose appellate review,” but merely “waive[d] those
      claims subject to issue preservation requirements which were not
      otherwise properly preserved.”


                                     - 27 -
J-S08037-18


Commonwealth v. Rosado, 637 Pa. 424, 150 A.3d 425, 432 (2016) (citation

omitted).   “[C]ounsel’s failure to file post-sentence motions [does] not fall

within the narrow ambit of ineffectiveness claims requiring no finding of

prejudice.” Commonwealth v. Corley, 31 A.3d 293, 296 (Pa.Super. 2011)

(citation and quotation marks omitted). Thus, in order to obtain relief on his

ineffectiveness claim, Appellant must demonstrate that the verdict was

against the weight of the evidence such that counsel may be deemed

ineffective in failing to file the post-sentence motion. See Corley, supra.

      Appellant’s complaint that trial counsel was ineffective for failing to file

a motion that the verdict was against the weight of the evidence is addressed

to the discretionary power of the court. Commonwealth v. Widmer, 560 Pa.

308, 744 A.2d 745 (2000).

      [O]ne of the least assailable reasons for granting or denying a new
      trial is the lower court’s conviction that the verdict was or was not
      against the weight of the evidence and that a new trial should be
      granted in the interest of justice. A new trial is warranted in this
      context only when the verdict is so contrary to the evidence that
      it shocks one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.

Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016)

(citations, quotation marks, and quotations omitted).

      In developing his weight of the evidence claim, Appellant specifically

points to inconsistencies between the victim’s testimony and defense

witnesses’ testimony regarding whether Appellant’s bedroom contained a bed

with posts and whether the victim screamed during the assault. He also points

                                     - 28 -
J-S08037-18


to inconsistencies in the victim’s testimony as to whether Appellant covered

the victim’s mouth with his hand or duct tape during the assault.

      The PCRA court rejected Appellant’s underlying weight of the evidence

claim, and we find no abuse of discretion in this regard. Specifically, to the

extent there was inconsistency between the victim’s testimony and Appellant’s

witnesses’ testimony regarding the bed, as well as whether the victim

screamed during the assault, the trial court was free to weigh the evidence

and resolve any inconsistency in the evidence. See Widmer, supra. Further,

to the extent the victim’s testimony was inconsistent as to the manner in

which Appellant covered his mouth during the sexual assault, the trial court

was free to determine what impact, if any, the inconsistency had on the

victim’s credibility. See id. Accordingly, as there is no merit to Appellant’s

underlying weight of the evidence claim, Appellant is not entitled to relief on

his claim that trial counsel was ineffective in failing to file a post-sentence

motion preserving the claim for appeal.

      Finally, Appellant argues that if this Court concludes he is not entitled

to relief based on the prejudicial effect of any single error, he is entitled to

relief because of the cumulative prejudicial effect of all of the errors set forth

in his appellate brief. It is well-settled that no number of failed ineffectiveness

claims may collectively warrant relief if they fail to do so individually.

Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009).

Accordingly, where ineffectiveness claims are rejected for lack of arguable


                                      - 29 -
J-S08037-18


merit, there is no basis for an accumulation claim.       Commonwealth v.

Sattazahn, 597 Pa. 648, 952 A.2d 640, 671 (2008). “When the failure of

individual claims is grounded in lack of prejudice, however, then the

cumulative prejudice from those individual claims may properly be assessed.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 161 (2012) (citations

omitted).

      In the instant case, to the extent we have individually rejected

Appellant’s claims of ineffectiveness based on a lack of prejudice, we now hold

that they do not prejudice him when considered in the aggregate.            See

Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 75 (2012).

      For all of the foregoing reasons, we affirm the PCRA court’s order.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2018




                                    - 30 -
