J-S13006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

TIMOTHY SMITH,

                         Appellant                    No. 198 WDA 2014


          Appeal from the PCRA Order Entered December 30, 2013
             In the Court of Common Pleas of Jefferson County
            Criminal Division at No(s): CP-33-CR-0000083-2009


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 31, 2015

      Appellant, Timothy Smith, appeals from the post-conviction court’s

December 30, 2013 order denying his petition for relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Appellant

raises several claims involving the ineffective assistance of his trial counsel.

After careful review, we affirm.

      Appellant was arrested on January 5, 2009, and charged with various

offenses after his step-daughter, C.P., alleged that he had sexually abused

her beginning when she was eight years old and continuing until she was

approximately thirteen years old.     Appellant proceeded to a jury trial on

October 5 and 6, 2009, at the close of which the jury convicted him of 23

counts of aggravated indecent assault, 29 counts of indecent assault (person

less than 13 years of age), and 26 counts of endangering the welfare of
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children. The trial court subsequently sentenced Appellant to an aggregate

term of 24 years, 8 months, and one day to 76 years’ incarceration.

Appellant was also determined to be a sexually violent predator for Megan’s

Law purposes.       Appellant timely appealed from his judgment of sentence

and, on September 13, 2011, we affirmed. Commonwealth v. Smith, 34

A.3d 225 (Pa. Super. 2011) (unpublished memorandum). Appellant did not

file a petition for allowance of appeal with our Supreme Court.

       On October 9, 2012, Appellant filed a timely, counseled PCRA petition

alleging, inter alia, the ineffective assistance of his trial counsel, David S.

Shrager, Esq.     A PCRA hearing was conducted on May 23, 2013, at which

Appellant and Attorney Shrager both testified. On December 30, 2013, the

PCRA court issued an opinion and order denying Appellant’s petition.

Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P.

1925(b) statement.1        Herein, Appellant raises the following issues for our

review:

       1.) Did [t]rial counsel render ineffective assistance?

          a.) Was [t]rial counsel inadequately prepared for trial?

          b.) Did [t]rial counsel fail to adequately prepare the
          defense witnesses for trial?
____________________________________________


1
  The trial court ordered Appellant to file a Rule 1925(b) statement on
February 4, 2014. Appellant did not comply with that order until June 30,
2014. However, at the same time that Appellant filed his untimely Rule
1925(b) statement, he filed a “Petition to Accept 1925(b) Statement Nunc
Pro Tunc,” which the trial court granted. The court issued a Rule 1925(a)
opinion on July 7, 2014.



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         c.) Did [t]rial counsel render ineffective assistance by
         failing to adequately communicate with Appellant before
         trial or adequately prepare him for trial?

         [d].) Did [t]rial counsel fail to challenge C.P.’s competency
         and reliability?

Appellant’s Brief at 5.

      We begin by noting that “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.”   Commonwealth v. Morales, 701 A.2d

516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,

356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.”
      Generally, counsel’s performance is presumed to be
      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain
      relief, a petitioner must demonstrate that counsel’s performance
      was deficient and that the deficiency prejudiced the petitioner. 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.” … [A] properly pled claim of ineffectiveness
      posits that: (1) the underlying legal issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice befell the petitioner from counsel’s act or
      omission.




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Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

       Appellant’s above-stated ineffectiveness claims are interrelated and,

therefore, we will address them together. Appellant devotes the majority of

his argument to attacking Attorney Shrager’s failure to delve into C.P.’s

mental health history during trial.            Specifically, Appellant claims that C.P.

suffers from bipolar disorder, a symptom of which is having “issues

accurately perceiving events (hallucinations, delusions, etc.).”            Appellant’s

Brief at 13. Appellant contends that Attorney Shrager “failed to take proper

measures to use the medical diagnosis and witness testimony to undermine

C.P.’s credibility by instructing the jury about the features of C.P.’s bipolar

disorder.”2 Id. at 15. While Appellant concedes that Attorney Shrager “did

____________________________________________


2
  Appellant also briefly contends that “[t]rial counsel did not attempt to raise
the issue of whether C.P.’s mental illness interfered with her ability to testify
competently.” Appellant’s Brief at 13. Appellant did not raise this specific
claim in his PCRA petition. Instead, he stated in his petition that “[a]lthough
trial counsel was aware of C.P.’s propensity for lying and fabricated medical
conditions, he did not attempt to challenge her competency and reliability on
those grounds.” PCRA Petition, 10/9/12, at 4 (unnumbered; emphasis
added). Appellant did not assert that Attorney Shrager was ineffective for
failing to challenge C.P.’s competency based on her diagnosis of bipolar
disorder. Accordingly, the PCRA court did not address this claim, and we
conclude that it is waived. See Commonwealth v. Washington, 927 A.2d
586, 601 (Pa. 2007) (“Any claim not raised in the PCRA petition is waived
and not cognizable on appeal.”) (citing Pa.R.A.P. 302 (stating “issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal”)). In any event, even if Appellant’s petition did preserve the
assertion that Attorney Shrager should have challenged C.P.’s competency
to testify based on her mental illness, Appellant’s three-sentence argument
(Footnote Continued Next Page)


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raise the issue of C.P.’s mental illness[,]” he complains that Attorney

Shrager “did not give a full or vigorous presentation of that issue.” Id. at

15-16.    Namely, counsel did not inform the jury “that an individual with

bipolar disorder may have delusions and hallucinations.”           Id. at 16.

Accordingly, Appellant claims that Attorney Shrager acted ineffectively

regarding his handling of the evidence of C.P.’s mental illness.

      In rejecting this ineffectiveness claim, the PCRA court concluded that

Attorney Shrager had a reasonable basis for not presenting significant

evidence regarding C.P.’s bipolar disorder. The court explained:

             Attorney Shrager recognized that the outcome of the trial
      depended on witness credibility.        He thus understood that
      discrediting the victim was imperative. He also knew from
      experience, however, that juries did not respond well to
      attorneys they perceived as bullying [the victim], to piecemeal
      attacks on a child victim’s proposed timeline, or to multiple-
      choice defenses. He thus deemed it prudent to advance one
      consistent theory to explain C.P.’s motivation for raising these
      allegations, and in his mind, the most persuasive theory was
      that she was jealous and determined to do whatever it took to
      recapture the life she had before [Appellant] became part of it
      [when he married C.P.’s mother]. [Attorney Shrager] knew that
      if he could win the jury over to that theory, the result would be a
      complete acquittal, not just a few “not guilty” checks on an 80-
      count verdict slip. Accordingly, he utilized the evidence he
      thought would best accomplish that goal without exposing his
      client to further embarrassment.        That necessarily entailed
      discarding or minimalizing other exculpatory information either
                       _______________________
(Footnote Continued)

in support thereof is not sufficiently developed to prove this ineffectiveness
claim. See Appellant’s Brief at 13; Commonwealth v. Wharton, 811 A.2d
978, 986 (Pa. 2002) (“Claims of ineffective assistance of counsel are not
self-proving; thus, appellant’s undeveloped arguments respecting counsel
are insufficient to prove an entitlement to relief.”) (citations omitted).



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      because it could actually hurt his client or because it was more
      peripheral to, or in some instances at odds with, his defense
      theory.

      …

              [Attorney] Shrager … knew of C.P.’s psychological issues
      and that she had once been diagnosed as [bipolar], and as the
      trial transcripts demonstrate, he in fact utilized that information,
      albeit minimally, in attempting to discredit her. He did so
      because he wanted merely to suggest to the jury that her mood
      disorder contributed to her decision to lie about the molestation,
      and he accomplished that goal. He did not want to explore her
      psychological history too deeply, however, as he was well aware
      that the documented onset of her symptoms coincided with
      when the alleged abuse had begun and [he] did not want to risk
      exposing that connection.

             The [c]ourt would note, moreover, that it was [Attorney]
      Shrager’s conscious objective to maintain a consistent theme
      and defense theory, not to advance what he described as an “a,
      b, c, and d” defense. His working theory had nothing to do with
      a diseased brain conjuring up false scenarios accepted as true; it
      instead proffered a victim who, motivated by jealousy,
      deliberately lied to get his client out of her life. He thus elected
      only to briefly refer to other possible sources of C.P.’s
      allegations.2 The notion that [Attorney] Shrager should have
      hired experts and explored whether any psychotic or
      hallucinogen[ic] features of [bipolar] disorder could have caused
      C.P. to imagine the events about which she testified runs
      contrary to that strategy.
          2
            An experienced trial attorney, [Attorney] Shrager knew
          that jurors sometimes attached significance to seemingly
          insignificant information. It thus behooved him to mention
          C.P.’s psychological issues, even if he did not wish to focus
          on them.

PCRA Court Opinion (PCO), 12/30/13, at 2-3, 6.

      Appellant does not dispute the court’s factual findings regarding

Attorney Shrager’s trial strategy and his reasons for not presenting

significant evidence of C.P.’s bipolar diagnosis.   Instead, Appellant attacks


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the   PCRA    court’s   legal   determination    that    Attorney   Shrager   acted

reasonably. As our Supreme Court has elucidated:

      With regard to the reasonable basis prong, “we do not question
      whether there were other more logical courses of action which
      counsel could have pursued; rather, we must examine whether
      counsel's decisions had any reasonable basis.” Commonwealth
      v. Washington, 592 Pa. 698, 927 A.2d 586, 594 (2007). We
      will conclude that counsel's chosen strategy lacked a reasonable
      basis only if Appellant proves that “an alternative not chosen
      offered a potential for success substantially greater than the
      course actually pursued.” Commonwealth v. Williams, 587 Pa.
      304, 899 A.2d 1060, 1064 (2006) (citation omitted).

Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      Here, at trial, C.P. testified to 16 separate incidents of abuse by

Appellant.     See Commonwealth v. Smith, No. 1395 WDA 2010,

unpublished memorandum at 2 (Pa. Super. filed September 13, 2011). To

refute C.P.’s claims, Attorney Shrager’s strategy was to choose one central

defense theory, and only briefly refer to other reasons that C.P. may have

wrongly accused Appellant, such as her bipolar disorder. The primary theory

chosen by counsel was that C.P. fabricated her allegations because she was

jealous of the relationship that her mother had developed with Appellant.

Appellant agreed to proceed with that defense theory at the time of his trial.

N.T. PCRA Hearing, 5/23/13, at 107.             While Appellant now claims that

Attorney Shrager should have focused on a theory that C.P. hallucinated or

imagined each of the 16 incidents of abuse, Appellant has not convinced us

that such a defense would have “offered a potential for success substantially

greater than the course actually pursued.”              Hanible, 30 A.3d at 439


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(citation omitted). Therefore, we agree with the PCRA court that Attorney

Shrager acted reasonably in his handling of the evidence of C.P.’s bipolar

disorder.

      Appellant next claims that Attorney Shrager acted ineffectively

because “he was unfamiliar with discovery materials” and “did not point out

discrepancies between C.P.’s preliminary hearing testimony and her trial

testimony.”   Appellant’s Brief at 17.     In his four-sentence argument in

support of these allegations, Appellant does not elaborate on what discovery

materials Attorney Shrager failed to sufficiently review, or how that

ostensible failure caused Appellant prejudice at trial.     He also does not

specify any inconsistencies between C.P.’s preliminary hearing testimony

and trial testimony that Attorney Shrager should have used to impeach her

credibility. Accordingly, Appellant has failed to meet his burden of proving

Attorney Shrager acted ineffectively in either of these regards.

      Appellant also contends that Attorney Shrager did not adequately

prepare him to take the stand at trial, which resulted in “an unfavorable

display for the jury.” Appellant’s Brief at 20. Specifically, Appellant avers

that Attorney Shrager “did not prepare Appellant by reviewing questions he

was going to ask Appellant on the stand. Trial [c]ounsel also did not prepare

Appellant for the questions the Commonwealth’s attorney would ask.” Id. at

21.   Appellant maintains that “there is no reasonable strategy that would

explain or justify failing to prepare a witness to confront a trained litigator”

such as a prosecutor for the Commonwealth. Id.

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      Contrary to Appellant’s contentions, the PCRA court found that

Attorney    Shrager   “spent   a   considerable   amount   of   time   preparing

[Appellant] for what would occur at trial[,]” and that “[a] significant part of

that was [spent] preparing [Appellant] to testify.”    PCO at 3.       The court

further explained:

      Understanding the potential pitfalls of taking the stand,
      [Appellant] had decided early on that he wanted to tell the jury
      he did not sexually assault his step-daughter.         Based on
      [Attorney Shrager’s] experience trying similar cases and the
      facts as he understood them in this case, [counsel] encouraged
      and condoned [Appellant’s] decision. He nonetheless made it
      clear that the decision was ultimately [Appellant’s] and
      conscientiously prepared him not only for his direct testimony,
      but also for the questions and challenges he expected the district
      attorney to pose on cross[-examination].

             As discovery continued and the case evolved, [Attorney]
      Shrager further prepared his client to answer the developing
      evidence. When the Commonwealth forwarded him records and
      documentation pertaining to alleged incidents that occurred
      while [Appellant] was employed at Rite Aid, for instance,
      [Attorney] Shrager did more than just file a motion to have it
      excluded; he also digested the information, which he deemed to
      be highly prejudicial and potentially damaging, and thoroughly
      prepared [Appellant] to respond to it in the event that his motion
      [to exclude it] was denied. In addition, [Attorney Shrager] did
      not allow his client to blindly take the witness stand after
      learning about the troublesome jail calls, but sat down with him
      to discuss their harmful potential and assess [Appellant’s]
      explanation of them. Having done that, he decided that his
      client was prepared to answer any questions the district attorney
      had about them and, therefore, it was still in [Appellant’s] best
      interests to testify.

Id. at 3.

      Appellant does not dispute the PCRA court’s factual findings regarding

Attorney Shrager’s actions in preparing him to take the stand.         Appellant


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also does not identify any specific question(s), asked of him at trial by either

Attorney Shrager or the Commonwealth, for which he was unprepared, or

point to any testimony that he provided at trial that was harmful to his case

and caused by his ostensible unpreparedness. In light of Appellant’s cursory

argument, and the PCRA court’s summation of Attorney Shrager’s conduct in

preparing Appellant to take the stand, we ascertain no error in the PCRA

court’s conclusion that Attorney Shrager adequately represented Appellant in

this regard.

          In sum, Appellant has failed to demonstrate that any of his claims

satisfies     all   three   prongs   of   the   test   for   counsel’s   ineffectiveness.

Accordingly, the PCRA court did not err in denying Appellant post-conviction

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




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