J-E03006-14



                                   2015 PA Super 47

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALFREDO REYES-RODRIGUEZ

                            Appellant                 No. 2121 EDA 2013


                  Appeal from the PCRA Order of June 28, 2013
             In the Court of Common Pleas of Northampton County
               Criminal Division at Nos: CP-48-CR-0001684-2006,
              CP-48-CR-0003501-2006, CP-48-CR-0001683-2006


BEFORE: BENDER, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, ALLEN,
        LAZARUS, WECHT, and STABILE, JJ.

OPINION BY STABILE, J.:                               FILED MARCH 11, 2015

        Appellant, Alfredo Reyes-Rodriguez, is serving a prison sentence for

his convictions of sex abuse crimes against three minor girls. The Court of

Common Pleas of Northampton County denied Appellant’s PCRA1 petition.

We granted reargument to determine, among other things, whether

Appellant’s trial counsel rendered ineffective assistance in failing to request

an adequate jury instruction on character evidence.        We now affirm the

denial of PCRA relief, as Appellant failed to meet his burden of establishing

that trial counsel had no reasonable basis for failing to request the jury

instruction.

____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
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        Appellant was charged with sexually abusing three minor half-sisters,

M.A. (born in 1990), S.C. (born in 1991), and Y.R. (born in 1995). Appellant

was the paramour of the girls’ mother while the abuse occurred, and the

victims called him their “stepfather.”      According to M.A., Appellant began

abusing her when she was eight years old, shortly after she first met him,

and while her family was living in Philadelphia.        When M.A. was ten, the

family moved to New York City, and Appellant continued to abuse her, two

to three times per week.      Appellant further continued to abuse M.A., then

twelve, when the family moved to Bethlehem, Pennsylvania. M.A. testified

that the abuse stopped in March 2006.

        S.C. met Appellant when she was eight or nine years old. She testified

that he began abusing her when she was ten years old and living in

Philadelphia.     Appellant continued to abuse her after the family moved to

Bethlehem.

        Y.R., who was nine years old when she went into foster care, testified

that Appellant abused her while they lived in Bethlehem.           On March 17,

2006,    S.C.’s   boyfriend   anonymously    reported   S.C.’s   abuse   to   Child

Protective Services. His report led to the removal of the sisters from their

home and placement in foster care, and Appellant’s arrest.

        Appellant pled guilty to various charges, but later withdrew his plea.

At trial, the Commonwealth established that Appellant groomed his victims,

and began to abuse them before their thirteenth birthdays.          Although the

abuse followed a common scheme, the nature of the assaults varied as to

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each individual victim.        Testifying in his own defense, Appellant denied

abusing the victims. Also, three of Appellant’s neighbors testified he had a

reputation of being a “good father.” The jury found Appellant guilty of the

following charges:

           -   For M.A.: attempted rape, aggravated indecent assault, indecent
               assault, endangering the welfare of children (EWOC), and
               corruption of minors;2
           -   For S.C.: indecent assault, EWOC, and corruption of minors;
               and
           -   For Y.M.: attempted aggravated indecent assault, indecent
               assault, EWOC, and corruption of minors.

        On May 14, 2007, Appellant was sentenced to an aggregate of 14½ to

29 years in prison.        Appellant appealed to this Court.   We affirmed the

judgment of sentence on July 25, 2011.3           Commonwealth v. Reyes-

Rodriguez, 32 A.3d 280 (Pa. Super. 2011) (unpublished memorandum).

        Appellant timely filed a pro se PCRA petition.         The PCRA court

appointed counsel, and held a hearing on the petition.         At the hearing,

Appellant questioned his trial counsel on his trial strategy—but only

regarding his use of the three character witnesses.      Appellant did not call

any witness to corroborate his claims that (1) the three character witnesses

would have testified further that he was nonviolent, peaceable, and chaste;

or (2) various uncalled witnesses would have testified that Appellant had the
____________________________________________


2
    18 Pa.C.S.A. §§ 901(a), 3125(a)(8), 3126(a)(7) 4304, and 6301(a)(1).
3
   Reyes-Rodriguez’s appellate lawyers twice abandoned him, requiring
reinstatement of his direct appeal rights.



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same character traits. In particular, PCRA counsel did not ask any questions

of trial counsel regarding the trial court’s instructions to the jury on

character evidence.        On June 28, 2013, the PCRA court denied post-

conviction relief, and Appellant appealed.       A divided panel of this Court

initially reversed, determining that Appellant was entitled to a new trial. We

granted reargument en banc, and now instead affirm the PCRA court’s denial

of relief.

       On reargument, Appellant raises the following issues, which we have

reordered for ease of discussion:

       1. Whether trial counsel was ineffective in failing to raise
          contemporaneous objections to the testimony of [M.A.]?

       2. Whether trial counsel was ineffective in failing to present
          evidence of the character of [Appellant] concerning his
          general reputation in the community with regard to traits as
          to non-violence, peaceableness, quietness, good moral
          character, chastity, and disposition to observe good order?

       3. Whether trial counsel was ineffective in failing to object or
          request a character evidence instruction that included the
          charge that “character evidence alone may raise a
          reasonable doubt and thus justify an acquittal of the
          charges?”

       4. Whether trial counsel was ineffective in failing to challenge
          the consecutive nature of sentencing at the sentencing
          hearing and/or in post-sentence motions?

Appellant’s Brief at 3-4 (capitalization and citation of case law and notes of

testimony omitted).4
____________________________________________


4
 Appellant raises four additional issues, but states they are meritless. See
Appellant’s Brief at 22-25. Accordingly, we will not address those issues.



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       In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in   the     light    most    favorable    to    the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.          Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).       We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.              Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc).                 In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

       All of Appellant’s issues assert ineffective assistance of trial counsel

(IAC).   “It is well-established that counsel is presumed effective, and [a

PCRA     petitioner]    bears     the   burden      of    proving   ineffectiveness.”

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009); see also

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (“We . . .

presume that counsel is acting effectively.”); accord Strickland v.

Washington, 466 U.S. 668, 687 (1984) (establishing the elements a

defendant must prove to show IAC). As the Supreme Court of the United

States has stated, “counsel should be ‘strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment,’ and . . . the burden to ‘show that

counsel’s performance was deficient’ rests squarely on the defendant.” Burt




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v. Titlow, 134 S. Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 687,

690).

        To prevail on an IAC claim, a PCRA petitioner must plead and prove by

a preponderance of the evidence that (1) the underlying legal claim has

arguable merit; (2) counsel had no reasonable basis for acting or failing to

act; and (3) the petitioner suffered resulting prejudice. Commonwealth v.

Baumhammers, 92 A.3d 708, 719 (Pa. 2014) (citing Pierce, 527 A.2d at

975-76). A petitioner must prove all three factors of the “Pierce test,” or

the claim fails.   Id.   In addition, on appeal, a petitioner must adequately

discuss all three factors of the “Pierce test,” or the appellate court will reject

the claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

        Appellant’s first issue concerns trial counsel’s failure to object to the

victims’ testimony regarding alleged abuse that occurred outside of

Northampton County, i.e., extraterritorial abuse. Except for his recitation of

the procedural history and the standard of review, Appellant’s argument on

this issue is as follows:

        Your [Appellant] argues that allowing the victims to testify
        regarding the alleged sexual assaults in question was a
        misapplication of the law and was manifestly unreasonable. The
        evidence presented was not probative and [sic] the issue at
        question in the instant matter. The evidence permitted was
        highly prejudicial to [Appellant] and outweighed its prejudicial
        value [sic].

Appellant’s Brief at 16.

        Two deficiencies in Appellant’s argument preclude relief.           First,

Appellant incorrectly frames the issue as trial court error in admitting the

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testimony. The PCRA, however, procedurally bars claims of trial court error,

by requiring a petitioner to show the allegation of error is not previously

litigated or waived. 42 Pa.C.S.A. §§ 9543(a)(3), 9544. At the PCRA stage,

claims of trial court error are either previously litigated (if raised on direct

appeal) or waived (if not).   See Commonwealth v. Spotz, 18 A.3d 244,

260-61, 270 (Pa. 2011) (rejecting claims of trial court error as either

previously litigated where raised on direct appeal or waived where not raised

direct appeal). Trial court error may constitute the arguable merit prong of

an IAC claim, but the issue must be framed properly for a petitioner to be

entitled to relief. See Commonwealth v. Paddy, 15 A.3d 431, 449 n.11

(Pa. 2011) (admonishing against conflating claims of IAC with claims of trial

court error).   As stated before, “[w]hen an appellant fails to meaningfully

discuss each of the three [IAC] prongs, he is not entitled to relief . . . .”

Fears, 86 A.3d at 804 (internal quotation omitted). Here, Appellant has not

discussed at all the reasonable-basis or prejudice prongs of the Pierce test

on this IAC claim.

      Second, Appellant inartfully categorizes the extraterritorial abuse

testimony as not probative and also more prejudicial than probative.

Compare Pa.R.E. 402, with Pa.R.E. 403.            He fails to cite supporting

authority for either proposition.    Appellant also fails to explain how the

evidence was irrelevant or, if relevant, how it was prejudicial.      When an

appellant cites no authority supporting an argument, this Court is inclined to

believe there is none. See Pa.R.A.P. 2119(a) and (b) (requiring an appellant

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to discuss and cite pertinent authorities); Commonwealth v. Antidormi,

84 A.3d 736, 754 (Pa. Super. 2014) (finding issue waived because the

appellant     “cited   no   legal   authorities   nor   developed    any   meaningful

analysis”).    Because Appellant has failed to develop his argument or cite

authority, he is not entitled to relief on his first claim.

       We next turn to Appellant’s IAC claim regarding character evidence.

Appellant contends trial counsel was ineffective for asking the three

character witnesses only about his reputation for being a good father. He

argues trial counsel should have additionally asked the witnesses about

Appellant’s reputation for nonviolence, peaceableness, quietness, good

moral character, chastity, and disposition to observe good order.

       Under Pennsylvania Rule of Evidence 404(a)(1), a “person’s character

or character trait is not admissible to prove that on a particular occasion the

person acted in accordance with the character or trait.” 5 Pa.R.E. 404(a)(1).

Under Rule 404(a)(2)(A), a criminal defendant may introduce evidence of a

“pertinent” character trait.         “Pertinent” means relevant to the crimes

charged.      Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa. Super.

2010).      In rebuttal, the Commonwealth may offer evidence of the

defendant’s bad character.            Pa.R.E. 404(a)(2)(A).         Pennsylvania law
____________________________________________


5
  Effective March 18, 2013, the Pennsylvania Rules of Evidence were
rescinded and replaced.  The changes, however, are stylistic—and not
substantive. See Commonwealth v. Huggins, 68 A.3d 962, 966 n.2 (Pa.
Super. 2013).



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generally limits proof of character evidence to a person’s reputation, and

opinion evidence cannot be used to prove character. Pa.R.E. 405(a).

      At trial, counsel called three of Appellant’s neighbors, Nancy Swartz,

Rebecca Wasler, and Virginia Serbia to testify on his behalf. Swartz testified

that she lived “right across the way” from Appellant, and that she had known

him and his family since he moved next door, about five or six years in all.

N.T. Trial, 4/11/07, at 7. As to Appellant’s reputation, she testified:

      Q. Now, in the community, what is the reputation for [Appellant]
      as to fatherhood?

      A. To me?

      Q. The type of father he is known to be?

      A. A very good father. He was strict, but he was a good father.

Id. at 78.

      Wasler, Swartz’s granddaughter who lived with Swartz, testified as

follows:

      Q. Did you talk to your neighbors about [Appellant’s] family?

      A. Just our neighbor, Virginia [Serbia].

      Q. Well did you get to know the reputation in their community
      and in your little apartment complex?

      A. Yes.

                                     ***

      Q. Do you have a perception as to what [Appellant’s] reputation
      was as to being a good father?

      A. I don’t really understand what you’re saying.

      Q. I’ll rephrase it. Did he have a good reputation as a father?


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      A. Yes.

Id. at 100-01.

      Serbia, another neighbor, testified as follows:

      Q. Have you spoken to any of your neighbors about [Appellant]
      and what type of father he was?

      A. Yeah, we used to go back and forth. We thought he was a
      good father. He is a good father.

      Q. Did he have a reputation among your group?

      A. Among the neighborhood, yes.

      Q. Other than Nancy and her family, Nancy Swartz and her
      family, were there any other people in the neighborhood that
      shared that?

      A. Well, our apartments are right next to each other, that’s nine
      apartments, and everybody knew [Appellant].

Id. at 112.

      Responding to Appellant’s IAC claim, the PCRA court concluded trial

counsel was not ineffective.     PCRA Court Opinion, 6/28/13, at 6-7.      The

PCRA court noted trial counsel testified he discussed character witnesses

with Appellant before trial, and Appellant was able to place good-character

evidence in the record.    Id.   The PCRA court concluded further that any

additional character evidence would have been cumulative. Id.

      We find no error in the PCRA court’s ruling.      Also, Appellant did not

present any witnesses at the PCRA hearing other than himself and trial

counsel.   Thus, no witness testified to the other aspects of Appellant’s

character that he claims trial counsel should have elicited at trial.   Among

other things, a PCRA petitioner must show the proposed testimony would


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have been beneficial, i.e., the absence of other good-character evidence

“was so prejudicial as to have denied the [petitioner] a fair trial.”              See

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quotation

omitted). Without evidence of what Appellant’s three witnesses would have

said if asked about his reputation for peaceableness, quietness, good moral

character, chastity, and the disposition to observe good order, he cannot

prove prejudice.

       We now turn to Appellant’s third IAC claim regarding counsel’s failure

to   request    an    appropriate     jury     instruction   on   character   evidence.

Specifically, Appellant argues the instruction given failed to apprise the jury

that character evidence alone may be sufficient to raise a reasonable doubt

and justify an acquittal. Appellant’s Brief at 13. Commonwealth v. Neely,

561 A.2d 1, 3 (Pa. 1989), requires such a charge if a defendant introduces

evidence of his or her good character. In this case, three witnesses testified

to Appellant’s reputation as a good father.6
____________________________________________


6
  The Commonwealth argues Appellant’s reputation as a “good father” was
not pertinent under Rule 404(a). We reject this argument. Appellant was
charged with EWOC, which requires proof of endangering a child to whom a
person owes a duty of care, protection, or support. Clearly, a person’s
reputation as a good father may be pertinent to rebut a charge that the
person abused children under his care. Furthermore, nothing in our case
law constrains character evidence in sex crimes cases to the trait of
“chastity.” Rather, Rule 404(a) requires only that the character trait be
“pertinent,” i.e., relevant. A person’s reputation as a good father or
caretaker may be pertinent to rebut a charge that a person sexually abused
children under his care.



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      The trial court gave the following charge to the jury on character

evidence:

      Now, during this trial, you have also heard the defense offer
      evidence asserting that the defendant’s reputation is held by
      some residents in the apartment building that he is a good
      father. The law recognizes that a person of good character is
      not likely to commit a crime that is contrary to that person’s
      nature. You must weigh and consider the evidence presented by
      the defense with regard to the defendant[’]s reputation as a
      good father along with other evidence in this case.

N.T. Trial, 4/12/07, at 55. Noticeably absent is that part of the suggested

standard jury instruction that states, “[e]vidence of a good character may by

itself raise a reasonable doubt of guilt and require a verdict of not guilty.”

Pa. Sugg. Stand. Jury Instr. (Crim.) § 3.06. Also absent is a request by trial

counsel for a charge under Neely.

      For matters of trial strategy, a PCRA petition must provide an

evidentiary basis on which to find trial counsel’s actions unreasonable.

Commonwealth v. Weiss, 81 A.3d 767, 782, 801-02 (Pa. 2013).                 To

prevail on his IAC claim, Appellant therefore bore the burden of showing that

trial counsel had no reasonable basis for his inaction.       As noted above

Appellant did not question trial counsel regarding his failure to request a

charge under Neely.     In fact, there is no evidence of record as to trial

counsel’s strategy in this regard. Appellant’s failure to support his IAC claim

with any evidence requires rejection of the claim.

      In Weiss, for example, the petitioner claimed IAC because his trial

counsel did not ask for a cautionary instruction regarding prior bad acts


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evidence.    Our Supreme Court rejected his claim because, though given a

hearing, the petitioner failed to question trial counsel regarding his decision

not to do so:

       Because Appellant was given an evidentiary hearing and yet did
       not elicit from trial counsel his reasons for failing to request the
       cautionary charge, and because the decision whether to seek a
       jury instruction implicates a matter of trial strategy,
       [Commonwealth v. Lesko, 15 A.3d 345, 401 (Pa. 2011)], the
       record before us provides no grounds for deeming counsel
       ineffective for failing to request an instruction.               See
       [Commonwealth v. Koehler, 36 A.3d 121, 147 (Pa. 2012)]
       (rejecting an ineffectiveness claim premised on counsel’s failure
       to request cautionary instructions because the petitioner did not
       ask trial counsel about his strategy at the PCRA hearing);
       Commonwealth v. Puksar, [951 A.2d 267, 278 (Pa. 2008)]
       (rejecting an ineffectiveness claim because, inter alia, PCRA
       counsel failed to question trial counsel during the PCRA hearing
       regarding his trial strategy for not calling a particular witness);
       Commonwealth v. Ervin, 766 A.2d 859 (Pa. Super. 2000)
       (rejecting claim challenging trial counsel’s failure to object to the
       prosecutor’s questioning and argument on the reasonable basis
       prong of the ineffectiveness test because the PCRA petitioner
       was afforded an evidentiary hearing, but failed to question trial
       counsel regarding his trial strategy as it related to the claim of
       ineffectiveness).

Id. (emphasis added).

       Moreover, “a lawyer should not be held ineffective without first having

an    opportunity      to    address     the   accusation   in   some   fashion.”7


____________________________________________


7
  In some cases, the lack of a reasonable basis may be apparent from the
face of the record, for example where counsel affirmatively misinforms his
client on the law. See Commonwealth v. Barndt, 74 A.3d 185, 199 &
n.16 (Pa. Super. 2013) (holding PCRA petitioner proved IAC where trial
counsel affirmatively misinformed him about collateral consequence, even
(Footnote Continued Next Page)


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Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010). In fact, our

Supreme Court has cautioned against finding no reasonable basis for trial

counsel’s actions in the absence of supporting evidence. “The fact that an

appellate court, reviewing a cold trial record, cannot prognosticate a

reasonable basis for a particular failure to raise a plausible objection does

not necessarily prove that an objectively reasonable basis was lacking.” Id.

at 896 (quoting Commonwealth v. Spotz, 870 A.2d 822, 832 (Pa. 2005)).

      Here, there was no evidence to support a conclusion that trial counsel

had no reasonable basis for his action.               It may seem that trial counsel,

having introduced character evidence, had no reasonable basis for not

requesting a jury instruction under Neely. However, this Court does not sit

as a fact-finder.       With no supporting evidence in the record, we cannot

resolve a factual dispute in favor of Appellant who bears the burden of proof

on this issue.

      In addition to presenting no evidence on whether or not trial counsel

had a reasonable basis not to request a Neely instruction, Appellant again

presents no argument on the prongs of the Pierce test regarding the lack of

a reasonable basis and prejudice.8               Our appellate courts have repeatedly

                       _______________________
(Footnote Continued)

though trial counsel did not testify at PCRA hearing). These circumstances
are not present in this case, because the issue here is one of trial strategy.
8
  Appellant cites Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981), and
Commonwealth v. Morgan, 739 A.2d 1033 (Pa. 1999), but those cases
are irrelevant. Scott and Morgan held a defendant’s character witnesses
(Footnote Continued Next Page)


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rejected IAC claims where the appellant fails to properly address all three

prongs of the Pierce test.          See, e.g., Fears, 86 A.3d at 804 (“When an

appellant fails to meaningfully discuss each of the three [IAC] prongs, he is

not entitled to relief . . . .”) (internal quotation omitted); Commonwealth

v. Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (finding IAC claim

regarding jury instructions waived where appellant baldly asserted prejudice

and failed to develop argument regarding reasonable basis).

      Accordingly, Appellant’s third claim must be rejected, as he has neither

put forth evidence to support his claim that trial counsel had no reasonable

basis for his actions, nor argument regarding the lack of a reasonable basis

or prejudice. Therefore, we are constrained to reject his IAC claim regarding

the lack of a good character evidence jury instruction under Neely.

      In his final claim, Appellant raises IAC for trial counsel’s alleged failure

to preserve a challenge to the discretionary aspects of his sentence,

specifically, the consecutive nature of the sentences imposed.

      Appellant is not entitled to relief, as his IAC claim regarding the

discretionary aspects of sentencing lacks arguable merit. On direct appeal,

we stated in passing that Appellant failed to raise a substantial question that

the sentence imposed was inconsistent with the Sentencing Code or contrary
                       _______________________
(Footnote Continued)

cannot be cross-examined about the defendant’s prior arrests that did not
result in convictions, holdings now embodied in Pa.R.E. 405(a)(2). Neither
case was a PCRA case, and neither case concerned the propriety of, or
consequences of failing to request, a Neely charge.



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to the fundamental norms underlying the sentencing process.             Reyes-

Rodriguez, 32 A.3d 280, No. 1787 EDA 2011, unpublished memorandum,

at 14-15 (filed July 25, 2011). Appellant repeats his claim that trial counsel

should have requested his sentences be made concurrent. “[A] sentencing

court generally has discretion to impose multiple sentences concurrently or

consecutively, and a challenge to the exercise of that discretion does not

ordinarily raise a substantial question.” Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014). A defendant who fails to raise a substantial

question is not entitled to appellate review of the discretionary aspects of

sentence, even if raised in a post-sentence motion. See id. at 1252.

      We note three additional bases that preclude relief on Appellant’s final

claim. First, Appellant never questioned trial counsel regarding sentencing,

so he cannot show that trial counsel had no reasonable basis for failing to

preserve a challenge to the sentence.         Second, the PCRA court, i.e., the

same judge who sentenced Appellant, stated it imposed consecutive

sentences because “there were three independent victims who were abused

at different times and at different places.”         PCRA Court Rule 1925(a)

Opinion, 7/28/13, at 10. Thus, any challenge to the consecutive nature of

Appellant’s sentences would have been rejected and therefore, Appellant

cannot establish prejudice.     Third, Appellant again fails to discuss the

reasonable basis and prejudice prongs of the Pierce test.

      In sum, the PCRA court did not err in denying post-conviction relief.

All of Appellant’s IAC claims fail at least one of the prongs of the Pierce test

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due to the Appellant’s failure to present evidence and/or argument to

support his claims. Accordingly, we affirm the order denying PCRA relief.

     Order affirmed.

     Judge Bowes, Judge Panella, Judge Donohue, Judge Shogan, Judge

Allen, Judge Lazarus, and Judge Wecht join the opinion.

     President Judge Emeritus Bender concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




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