J-S25007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ZACHARY SCOTT THOMPSON                     :
                                               :
                       Appellant               :   No. 1532 MDA 2019

             Appeal from the PCRA Order Entered August 30, 2019
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0000998-2016


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 29, 2020

        Zachary Thompson appeals from the order, entered in the Court of

Common Pleas of Cumberland County, denying his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.

        In December of 2015, Thompson sexually assaulted his cousin, H.F.,

when H.F. was visiting Thompson’s home for a birthday party. N.T. Jury Trial,

10/25/16, at 66-67. Thompson was charged with rape,1 involuntary deviate




____________________________________________


1   18 Pa.C.S. §3121(a)(1).
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sexual intercourse,2 sexual assault,3 two counts of corruption of minors,4 and

indecent assault.5

        Attorney Joshua Yohe from the Cumberland County Public Defender’s

Office represented Thompson at trial. N.T. PCRA Hearing, 5/2/19, at 23. On

October 24, 2016, the day of trial, the parties agreed to mutual sequestration

of witnesses. N.T. Jury Trial, 10/24/16, at 5. Thompson did not intend to call

any witnesses at that time. Id. After the Commonwealth rested its case,

Attorney Yohe learned that Petra Trego, Thompson’s father’s girlfriend, had

information useful for Thompson’s defense. N.T. Jury Trial, 10/25/16, at 116.

The Commonwealth objected to Trego testifying because Trego had been

present for the entire trial, contrary to the sequestration order. Id. The trial

court ultimately precluded Trego from testifying noting that:

        [U]nder the circumstances of this case, your client and his family have
        known from the start what the issues were, and the issue was whether
        or not [H.F.] was indeed raped without any consent, whether there was
        a forcible rape. And clearly her attitude, her demeanor, on the day after
        in question would have been relevant, and, frankly, the fact that
        someone sits through the trial and brings it up at this late stage, I’m
        sorry, but I’m not going to permit it.

Id. at 118.



____________________________________________


2   18 Pa.C.S. §3123(a)(1).

3   18 Pa.C.S. § 3124.1.

4   18 Pa.C.S. §3601(a)(1)(ii); 18 Pa.C.S. §6301(a)(1)(i).

5   18 Pa.C.S. § 3126(a)(1).

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         On October 26, 2016, a jury convicted Thompson of sexual assault, two

counts of corruption of minors, and indecent assault. On January 31, 2017,

the trial court sentenced Thompson to three to six years of imprisonment, plus

four years of probation to run consecutively to the prison term; at that time,

Thompson was notified of lifetime registration requirements pursuant to the

Sex Offender Registration and Notification Act (SORNA).6

         Attorney Geoffrey McInroy represented Thompson during sentencing,

post-sentence motions, and on appeal. N.T. PCRA Hearing, 5/2/19, at 43.

Thompson timely filed post-sentence motions in which he preserved the

sequestration issue. At the post-sentence motion hearing on February 28,

2017, Trego testified that she told Attorney Yohe before trial that she would

be willing to testify regarding H.F.’s behavior the morning after the assault,

which she described as normal. Post-Sentence Motion Hearing, 2/28/17, at

13.      The trial court denied Thompson’s post-sentence motions on June 8,

2017.

         The defendant filed a timely notice of appeal on July 7, 2017. Despite

including the sequestration issue in his court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, Attorney McInroy only

argued sufficiency and weight of the evidence claims in Thompson’s appellate

brief.    Commonwealth v. Thompson, 1087 MDA 2017 (Pa. Super., filed



____________________________________________


642 Pa.C.S.A. §§ 9799.10-9799.41. As a Tier III offender, Thompson was
subject to lifetime registration. 42 Pa.C.S.A. §9799.15(a)(3).

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June 29, 2018) (unpublished memorandum). Our Court affirmed Thompson’s

judgment of sentence on June 29, 2018. Id.

      Thompson filed a pro se PCRA petition on September 5, 2018.             On

February 19, 2019, Thompson’s newly-appointed counsel filed an amended

PCRA petition, arguing that Thompson’s trial counsel was ineffective for failing

to sequester and prepare Trego as a witness, and that Thompson’s appellate

counsel was ineffective for failing to argue the sequestration issue on direct

appeal.

      On May 2, 2019, Thompson, Attorney Yohe, and Attorney McInroy

testified at the PCRA hearing. Attorney Yohe testified that Trego told him she

had valuable information for the defense only after the Commonwealth had

rested its case in chief. N.T. PCRA Hearing, 5/2/19, at 26. Attorney Yohe did

not consider Trego’s testimony important given his trial strategy. Id. at 39.

At trial, H.F. did not testify explicitly as to consent; Attorney Yohe’s strategy

was to frame the situation as consensual sex that H.F. later regretted. Id. If

the sex was consensual, Attorney Yohe posited, H.F. would have been acting

normally the next morning, so Attorney Yohe did not believe Trego’s testimony

was relevant. Id. Attorney McInroy testified that he did not include the Trego

sequestration issue in Thompson’s appellate brief because he believed that it

had little chance of success, and that the weight and sufficiency issues were

stronger. Id. at 46. On direct appeal, Attorney McInroy sought to focus this

Court’s attention on the stronger issues. Id.




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      On August 30, 2019, the PCRA court denied Thompson’s petition.

Thompson filed a timely notice of appeal on September 23, 2019, followed by

a court-ordered Rule 1925(b) concise statement of errors complained of on

appeal. Thompson presents the following issue for our review,

            “Whether the PCRA court [erred] when it denied defendant’s claim
            for ineffective assistance of [appellate] counsel for failing to brief
            the preserved issue of the trial judge sustaining the
            Commonwealth’s objection to defense witness at trial?”

Appellant’s Brief, at 2.

      Our standard of review for the denial of a PCRA petition is to determine

whether the PCRA court’s findings are supported by the record and free from

legal error. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The

scope of our review is limited to the findings of the PCRA court and the

evidence of record, viewed in the light most favorable to the prevailing party

at the PCRA level. Id.

      Thompson argues that Attorney McInroy was ineffective for failing to

brief, on direct appeal, the issue of whether the trial court erred by sustaining

the Commonwealth’s objection to defense witnesses Trego’s testimony after

she failed to follow the prior sequestration order.

      The law presumes that counsel was effective, and the burden falls on

the appellant to show otherwise. Id. To prevail on an ineffectiveness claim,

Thompson must show that: (1) his underlying claim has arguable merit; (2)

appellate counsel had no reasonable basis for his action or inaction; and (3)

appellate counsel’s error prejudiced Thompson such that there is a reasonable


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probability the outcome at trial would have been different absent such error.

Id. Thompson must prove that, in light of all other alternatives, the strategy

actually chosen was so unreasonable that no competent lawyer would have

chosen it.    Commonwealth v. Buska, 655 A.2d 576, 582-83 (Pa. Super.

1995).     If the chosen strategy had some reasonable basis, then counsel’s

assistance is deemed effective.       Commonwealth v. Williams, 899 A.2d

1060, 1064 (Pa. 2006). A strategy is considered reasonable if after making

an informed choice, the strategy chosen could have reasonably been

considered to advance and protect the defendant’s interests. Buska, supra

at 582-83. After review, we conclude that Thompson has failed to establish

that appellate counsel had no reasonable basis for his decision to exclude the

sequestration issue from Thompson’s appellate brief.

       Thompson argues that: “Not including the [sequestration issue] . . . did

not elevate [Attorney McInroy’s] . . . argument on sufficiency of the evidence.

It only acted to waive [Thompson’s] constitutional challenge to the trial court’s

ruling.”   Appellant’s Brief, at 9.   At the PCRA hearing, Attorney McInroy

testified that he believed the sequestration issue was correctly decided, and

further explained that, under an abuse of discretion standard, he believed the

claim had little chance of success on appeal. N.T. PCRA Hearing, 5/2/19, at

53-54. Attorney McInroy testified that the aim of his strategy was to elevate

the strength of the weight and sufficiency claims by not including a frivolous

issue. Id.




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      Contrary to Thompson’s argument that excluding issues on appeal is not

a valid strategy, the Pennsylvania Supreme Court has stated that counsel is

under no obligation to raise all meritorious claims and, in fact, should be

selective in what claims to raise. Commonwealth v. Jones, 815 A.2d 598,

614 (Pa. 2002). “This process of ‘winnowing out weaker arguments on appeal

and focusing on’ those more likely to prevail, far from being evidence of

incompetence, is the hallmark of effective appellate advocacy.” Id. (quoting

Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).

      In light of the foregoing, Thompson has failed to establish that appellate

counsel had no reasonable basis for his decision not to raise the sequestration

issue on appeal. Accordingly, appellate counsel cannot be deemed ineffective,

and Thompson is entitled to no relief. Williams, supra.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/29/2020




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