J-S64017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MICHAEL G. PROTOS,

                         Appellant                    No. 312 WDA 2014


           Appeal from the PCRA Order Entered January 29, 2014
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000700-2007


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 06, 2014

      Appellant, Michael G. Protos, appeals from the January 29, 2014 order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant asserts that his trial attorney

provided ineffective assistance of counsel (IAC) on multiple occasions.      He

also claims that the Commonwealth failed to disclose exculpatory evidence.

After careful review, we affirm.

      The certified record supports the following summary of the facts

adduced at trial:

            [Appellant] and Marci Protos, A.J.'s mother, were married
      in November, 1993. A.J. is the stepchild of [Appellant] as a
      consequence of the marriage. At the time of the marriage A.J.
      was four years of age…. After their marriage Marci Protos and
      [Appellant] resided with A.J. in Star Junction, Fayette County,
      Pennsylvania.     Marci Protos gave birth to two additional
      children…. The Protos family continued to reside in Star Junction
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     until 1999 when they moved to … Perryopolis, Fayette County,
     where Marci and the three children continued to reside.

                                     …

           During the course of the marriage[,] Marci Protos worked
     as a bartender at Pizon's Tavern several nights a week, initially
     from Wednesday through Sunday and later from Wednesday
     through Saturday. Her shift at Pizon's began at 7:00 P.M. and
     continued until 2:30 A.M. While Marci Protos was at work[,]
     [Appellant] watched the children.

           When A.J. was seven years of age and the parties were
     residing in Star Junction[,] [Appellant] began to engage in
     inappropriate sexual conduct with her. While Marci was at
     work[,] [Appellant] would enter A.J.'s bedroom with nothing on
     except a towel wrapped around his waist while A.J. was sleeping
     or attempting to sleep. [Appellant] would lie down on the bed
     with A.J., play with her hair, place her head on his stomach and
     would then place his penis against her mouth. [Appellant]'s
     actions in entering A.J.'s bedroom and touching her with his
     penis occurred on several occasions continuing until A.J. was
     eight to nine years of age[, when] she wrote a note to her
     mother indicating that she believed [Appellant] was sexually
     abusing her. After she wrote the note to her mother[,] who then
     confronted [Appellant], [Appellant]'s inappropriate conduct with
     A.J. ceased for a period of time.

           When A.J. was twelve years old, [Appellant] left the home
     … and moved into the one-bedroom apartment in Perryopolis.
     Since Marci worked weekends at Pizon's she would drop the
     children at [Appellant]'s apartment for the weekend.

           At [Appellant]'s apartment[,] the two younger sisters slept
     in the living room and A.J. slept on the floor in [Appellant]'s
     bedroom. In [Appellant]'s bedroom, [Appellant] would lie on top
     of her in his underwear and rub his penis on her vagina. Over
     time[, Appellant]'s conduct culminated in actual sexual
     intercourse with the child. [Appellant] would take off the child's
     shorts, wet his penis or lick her vagina, putting his tongue inside
     her vagina, then engage in vaginal intercourse with the child.
     According to A.J.[,] [Appellant] would engage in this conduct
     "sometimes once a week, sometimes not and sometimes more."

          [Appellant] continued in his conduct of licking A.J.'s vagina
     and having vaginal intercourse with the child at the apartment in

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     Perryopolis, at the mobile home in Fayette City, at the
     farmhouse near Virgin Run and at Cope Road when he returned
     home.

            At times the child would resist [Appellant]'s attempts to
     have intercourse with her by holding her legs together and by
     attempting to push him off of her. On these times, [Appellant]
     would hold her arms down, forcibly remove her shorts and
     forcibly have sexual intercourse with her. On one occasion,
     [Appellant] ripped her shorts in taking them off of her. As A.J.
     got older, her resistance to [Appellant]'s demand for sexual
     intercourse increased.

           When A.J. was sixteen years old[,] in the summer of
     2006[,] she finally told a neighbor boy about her stepfather
     forcing her to have sexual intercourse[.] [A]nd[,] on September
     15, 2006, she told her mother.

           Marci Protos confronted [Appellant] with A.J.'s allegations
     that he had engaged in sexual intercourse with his stepdaughter.
     In response, [Appellant] admitted that he did but stated that
     he's sick and that he[] needed mental help. [Appellant]'s sister,
     Andrea Haller, learned of the allegations from Marci Protos.
     Andrea subsequently related to their mother, Angie Protos, the
     allegations that [Appellant] had engaged in sexual intercourse
     with A.J. Within a few days after Andrea Haller and Angie Protos
     learned of the allegations, [Appellant] visited his mother's home
     and was confronted by his mother and sister about whether he
     had actually engaged in sexual intercourse with A.J. [Appellant]
     thereupon confessed to his sister and mother that he had
     engaged in sexual intercourse with the child.

           [Appellant] subsequently wrote letters of apology to Marci
     Protos and to A.J.

          The parties stipulated that the child, A.J., is not and never
     was married to [Appellant] and t[o] [Appellant]'s date of birth….

PCRA Court Opinion (PCO), 1/29/14, at 3-6 (citations to record omitted).

     Following Appellant’s jury trial, he was convicted of rape, multiple

counts of involuntary deviate sexual intercourse, multiple counts of

aggravated indecent assault, statutory sexual assault, sexual assault, and



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multiple counts of indecent assault.       Appellant was sentenced to an

aggregate term of 10 – 30 years’ incarceration for these offenses. Appellant

filed timely post-sentence motions which were denied by the trial court.

     Thereafter, Appellant filed a timely notice of appeal. On July 28, 2010,

this Court affirmed Appellant’s judgment of sentence in a memorandum

opinion, and our Supreme Court subsequently denied his petition for

allowance of appeal on January 12, 2011.     Commonwealth v. Protos, 6

A.3d 576 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 16

A.3d 503 (Pa. 2011).

     Appellant filed a timely PCRA petition on January 9, 2012. The PCRA

court held an evidentiary hearing to address the claim raised therein on June

26, 2012. On January 29, 2014, the PCRA court issued an opinion and order

denying Appellant’s PCRA petition.   Appellant then filed a timely notice of

appeal from that order on February 21, 2014. The PCRA court did not order

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal.

     Appellant now presents the following questions for our review:

     a. Whether Appellant's trial counsel was ineffective due to his
     failure to call character witnesses, failure to call witnesses that
     could have refuted the truthfulness of Commonwealth witnesses,
     failure to obtain a ruling from the Trial Court judge on trial
     attorney's Motion for Mistrial, and failure to object to improper
     closing arguments[?]

     b. Whether Appellant is entitled to post conviction relief due to
     the Commonwealth's failure to disclose exculpatory evidence
     which is a violation of the Pennsylvania and United States
     Constitutions[?]

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Appellant’s Brief at 5.

      Initially, we note that “[i]n PCRA proceedings, an appellate court's

scope of review is limited by the PCRA's parameters; since most PCRA

appeals involve mixed questions of fact and law, the standard of review is

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

legal error.”   Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).

Appellant’s first claim is, in fact, four distinct allegations of the ineffective

assistance of his trial counsel. We will address each in the order in which

they were presented.

             In order to obtain relief on a claim of ineffectiveness, a
      PCRA petitioner must satisfy the performance and prejudice test
      set forth in Strickland v. Washington, 466 U.S. 668, 687, 104
      S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have
      applied the Strickland test by looking to three elements: the
      petitioner must establish that: (1) the underlying claim has
      arguable merit; (2) no reasonable basis existed for counsel's
      actions or failure to act; and (3) the petitioner suffered prejudice
      as a result of counsel's error such that there is a reasonable
      probability that the result of the proceeding would have been
      different absent such error. Commonwealth v. Pierce, 515 Pa.
      153, 527 A.2d 973, 975 (1987). Additionally, we note, the Sixth
      Amendment right to counsel is recognized “not for its own sake,”
      but because of the effect it has on the accused's right to a fair
      trial. See Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct.
      838, 122 L.Ed.2d 180 (1993); see also Strickland, 466 U.S. at
      689, 104 S.Ct. 2052. For these reasons, counsel is presumed to
      have rendered effective assistance.         Finally, both the U.S.
      Supreme Court and this Court have made clear that a court is
      not required to analyze the elements of an ineffectiveness claim
      in any particular order of priority; instead, if a claim fails under
      any necessary element of the Strickland test, the court may
      proceed to that element first.                Strickland, supra;
      Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
      (1998). Counsel cannot be deemed ineffective for failing to raise


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       a meritless claim. Commonwealth v. Jones, 590 Pa. 202, 912
       A.2d 268, 278 (2006).

Commonwealth v. Sepulveda, 55 A.3d 1108, 1117-18 (Pa. 2012).

                         Failure to Call Character Witnesses

       Appellant’s first IAC claim posits that his trial counsel was ineffective

for failing to call character witnesses, failing to contact or interview any

character witnesses before trial, and for failing to discuss with Appellant

before trial his right to call character witnesses.1       At the PCRA hearing,

Appellant presented three potential witnesses who he contended could have

provided character evidence on his behalf at trial.        Trial counsel testified

that, in his experience, character witnesses were not beneficial to criminal

defendants.     Furthermore, trial counsel said his trial strategy was to rely

solely on Appellant’s testimony, because he believed that Appellant was

likely to be a credible witness in the eyes of the jury.

       When raising a failure to call a potential witness claim, the PCRA
       petitioner satisfies the performance and prejudice requirements
       of the Strickland test by establishing that:

          (1) the witness existed; (2) the witness was available to
          testify for the defense; (3) counsel knew of, or should
          have known of, the existence of the witness; (4) the
          witness was willing to testify for the defense; and (5) the
          absence of the testimony of the witness was so prejudicial
          as to have denied the defendant a fair trial.




____________________________________________


1
 However, he did discuss Appellant’s right to call character witnesses with
Appellant when prompted to do so by the Court on the second day of trial.



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

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007)).

     The PCRA court determined that Appellant did not demonstrate trial

counsel’s failure to call the three witnesses prejudiced Appellant. The court

explained:

            [PCRA] counsel presented three persons at the [PCRA]
     [h]earing to indicate that they would have been willing to testify
     as character witnesses had they been called at trial. These
     include Lynn Michelle Protos, [Appellant]'s wife, Derrick
     Basinger, [Appellant]'s brother-in-law, and Hazel Blaney. From
     the testimony presented by these witnesses this Court is not
     convinced that any of the witnesses would have been able to
     testify as to the reputation of [Appellant] in the general
     community for being a peaceful and law-abiding citizen as would
     require a character witness charge to be given by the Court to
     the jury.    The witnesses basically testified that they knew
     [Appellant] and that he was a good person, [they did] not
     [present] reputation testimony.

PCO, at 11.

     Generally, “[e]vidence of 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.” Pa.R.E. 404 (a)(1). However, in a

criminal case, “a defendant may offer evidence of the defendant's pertinent

trait….” Pa.R.E. 404 (a)(2)(A). As this Court has explained:

           It is clearly established that evidence of good character is
     to be regarded as evidence of substantive fact just as any other
     evidence tending to establish innocence and may be considered
     by the jury in connection with all of the evidence presented in
     the case on the general issue of guilt or innocence. “Evidence of
     good character is substantive and positive evidence, not a mere
     make weight to be considered in a doubtful case, and, ... is an
     independent factor which may of itself engender reasonable

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      doubt or produce a conclusion of innocence.” Commonwealth
      v. Gaines, 167 Pa.Super. 485, 492, 75 A.2d 617, 620 (1950)
      (quoting Commonwealth v. Padden, 160 Pa.Super. 269, 275,
      50 A.2d 722, 725 (1947)). Evidence of good character offered
      by a defendant in a criminal prosecution must be limited to his
      general reputation for the particular trait or traits of character
      involved in the commission of the crime charged.

Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa. Super. 1983) (some

citations omitted) (emphasis added).

      We agree with the PCRA court that Appellant failed to meet his burden

to show that the proposed character witnesses would have testified to a

“pertinent” character trait and, therefore, that Appellant was prejudiced by

their absence.    Pa.R.E. 404(a)(2)(A).      For instance, during the direct

examination of Lynn Michelle Protos (Appellant’s wife at the time trial), PCRA

counsel asked her, “Would you have testified regarding your husband’s good

reputation in the community?”     N.T., 6/26/12, at 35.    Mrs. Protos replied,

“Yes.”   Id. However, PCRA counsel did not attempt to elicit, nor did Mrs.

Protos ever state, to what character trait, let alone to what “pertinent”

character trait, Mrs. Protos could or would have been able to provide

testimony.

      Similarly, Derrick Basinger failed to identify a pertinent character trait.

Id. at 46-49. The testimony of Hazel Blaney was also deficient in the same

manner. Indeed, not only did Ms. Blaney fail to testify regarding a pertinent

character trait, cross-examination revealed that she could not address

Appellant’s reputation in the community at all.       Id. at 46.    Thus, after

reviewing the testimony presented at the PCRA hearing, and the applicable


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case law and rules regarding reputation testimony, we conclude that the

PCRA court’s decision was supported by the record and free of legal error.

                        Failure to Call Dr. Scott Tracy

      Next, Appellant posits that his trial counsel provided IAC by failing to

call Dr. Scott Tracy to refute the veracity of the testimony provided by

Appellant’s   mother,   sister,   and    ex-wife   (the   victim’s   mother),   all

Commonwealth witnesses. Appellant premises his claim as follows:

             During Appellant's trial, the Commonwealth's witnesses
      testified that … Appellant was attending therapy sessions
      regarding sexual issues with Dr. Scott Tracy. Specifically, …
      Appellant's mother testified that "she [Appellant's ex-wife]
      wanted him to go for therapy to a specialist that dealt with that
      type of problem" [N.T., 5/8/2008-5/13/2008, at 114]. Later,
      the following dialogue took place between the prosecutor and …
      Appellant's mother.

         Q. So then at some point in October or so of 2006 he
         [Appellant] began going to the therapist with you —

         A. Yes.

         Q. - to talk about not only the grief but the sexual things
         that he had talked about?

         A. Yes. Id. [at 115-16.]

        Finally, Appellant's Mother testified when asked how …
      Appellant would proceed with therapy[:]

         []I mean he was extremely ashamed and repentant and he
         took it very hard emotionally, and he, you know we
         assume that he was going to go get help. That's the
         direction that we were looking for, that he would go and
         get counseling and do what he could do, you know,
         without having to go and make it public or be put under
         arrest for it, to try and handle with therapists and within
         the family and not make it public.[] Id. [at 117].



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      Appellant's sister also testified that she said [sic] in with a grief
      therapy session and "then also [Appellant] was supposed to
      speak with [Dr. Tracy] about sexual molestation. That was
      supposed to be his agreement with [his ex[-]wife] to be able to
      see [his] kids" Id. [at 100]. Also, when asked whether …
      Appellant would have a separate session with the counselor, …
      Appellant's sister stated "yes" and that when asked whether this
      session would regard other sexual issues, she stated "yes" again.
      Id. Finally, Appellant's ex[-]wife testified at trial when asked if
      Appellant was going to grief counseling therapy due to his
      father's suicide, the ex[-]wife stated "No, he [… Appellant] told
      me he needed therapy because he was sick. He had things done
      to him when he was a child and he's sick because of it. That's
      why he, you know, I assume that's why he did what he did and
      he told me he needed therapy, he was sick." Id. [at 93].

Appellant’s Brief 19-20.

      Dr. Tracy, a psychotherapist, testified at the PCRA hearing that both

Appellant’s mother and sister were once his patients. N.T., 6/26/12, at 6-7.

Appellant “was not” his patient. Id. at 8. Dr. Tracy saw Appellant “as part

of family therapy” with his sister and mother. Id. at 7. Dr. Tracy explained:

      We frequently employ family therapy in grief counsel modalities.
      In fact[,] we really attempt to employ family therapy in all
      treatment modalities.     So [Appellant] participated in some
      sessions with his mother as we were helping her debrief the
      experience, the horrific experiences she had from the suicide of
      her husband.

Id. at 9.

      Dr. Tracy further testified that he did “not recall [Appellant’s]

disclosing to me or confessing to me any type of inappropriate conduct with

his daughter. I do not recall [Appellant]’s mother[’s] disclosing any of that

information to me as well and … [Appellant] was not an identified patient.”

Id. Moreover, Dr. Tracy indicated in his capacity as a psychotherapist, he



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was mandated by law to report any evidence of child abuse or neglect. Id.

at 10.

         Appellant argues that “[d]espite the testimony of … Appellant’s

mother, sister, and ex[-]wife regarding therapy sessions with Dr. Scott

Tracy, Dr. Tracy was never called by trial counsel to dispute any of the

[]allegations that … Appellant had therapy regarding sexual issues.”

Appellant’s Brief at 20.      He contends that “the prosecution witnesses

testified that … Appellant had attended therapy sessions with them and that

… Appellant spoke about sexual issues during these sessions.” Id.

         There is no arguable merit to Appellant’s claim. There was testimony

that Appellant’s mother, sister, and ex-wife wanted Appellant to attend

therapy, and that Appellant told them that he intended to seek therapy after

he admitted to them his sexual abuse of the victim.              Appellant fails,

however, to identify any statement made by a prosecution witness that

alleged that he admitted to sexually abusing the victim while attending

family therapy sessions with his sister and mother. Simply put, Dr. Tracy’s

PCRA hearing testimony was consistent with the trial testimony of the

Commonwealth witnesses.       Consequently, Appellant was not prejudiced by

his trial counsel’s failure to call the doctor as a witness at his trial. Thus, we




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conclude that the PCRA court’s denial of this claim is supported by the record

and free of legal error.2

         Failure to Obtain a Ruling on Appellant’s Motion for a Mistrial

       In Appellant’s next IAC claim, he asserts that “trial counsel did not

obtain a ruling from the trial judge regarding his motion for mistrial during

the trial.” Appellant’s Brief at 22. As a result, he claims he was prejudiced

because, “but for this error, the appeal would possibly have been different.”

Id. at 23.

       In our memorandum opinion affirming Appellant’s judgment of

sentence on direct appeal, this Court stated:

             We point out that, while the notes of testimony suggest
       that the trial court did not expressly deny Appellant’s request for
       a mistrial, Appellant, the Commonwealth, and the trial court all
       agree that the court denied the request. We, therefore, will
       address Appellant’s claim as though the court denied the motion
       for a mistrial.

Commonwealth v. Protos, No. 654 WDA 2009, unpublished memorandum

at 5 (Pa. Super. filed July 28, 2010).
____________________________________________


2
   Within the argument section of Appellant’s brief addressing this claim,
Appellant also contends that his trial counsel rendered IAC by failing to call
an expert witness to testify as to Appellant’s propensity to carry out the
alleged crimes. Appellant’s Brief at 21-22. However, Appellant’s claim is
purely hypothetical. Appellant fails to identify the expert witness who he
would call to provide such testimony, and Appellant did not provide any such
witness at his PCRA hearing. Accordingly, this claim fails under every
element of the Johnson/Washington test for IAC premised upon the failure
to call a witness. See Johnson, 966 A.2d at 536. Accordingly, the PCRA
court’s finding that this claim was without merit is supported by the record
and free of legal error.



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         Appellant cannot demonstrate he was prejudiced by trial counsel’s

failure to obtain a ruling on his motion for a mistrial.       It is clear that this

Court overlooked the fact that such a ruling did not appear on the record,

and proceeded to address the merits of Appellant’s motion despite the defect

in the record.      Thus, Appellant was not prejudiced by the defect in the

record. Consequently, Appellant’s derivative claim regarding trial counsel’s

failure to perfect the defect in the record did not prejudice Appellant on

direct appeal. Accordingly, we conclude that the PCRA court’s finding that

this IAC claim was meritless is supported by the record and free of legal

error.

           Failure to Object to Prosecutor’s Improper Closing Arguments

         In Appellant’s final IAC claim, he asserts that his trial counsel failed to

object to several comments made by the prosecutor during closing

arguments. Appellant explains:

         During closing arguments the prosecuting attorney stated twice
         that … Appellant was "in denial." He also stated that a portion of
         … Appellant's testimony was a "bald faced lie" and used the
         phrase "in his own warped sick mind" when talking about …
         Appellant. The prosecuting attorney also used the pronoun "I"
         during his closing arguments and this interjected his opinion in
         the matter.

Appellant’s Brief at 23-24 (internal citations omitted).          Appellant’s trial

counsel did not object to any of these statements.

         Whether Appellant’s IAC claim has any arguable merit depends upon

whether the prosecutor’s comments were improper.



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           The Commonwealth is entitled to comment during closing
     arguments on matters that might otherwise be objectionable or
     even outright misconduct, where such comments constitute fair
     response to matters raised by the defense, or where they are
     merely responsive to actual evidence admitted during a trial.
     See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243,
     249 (2000) (plurality opinion) (“A remark by a prosecutor,
     otherwise improper, may be appropriate if it is in fair response to
     the argument and comment of defense counsel”) (citing United
     States v. Robinson, 485 U.S. 25, 31, 108 S.Ct. 864, 99
     L.Ed.2d 23 (1988)); Commonwealth v. Marrero, 546 Pa. 596,
     687 A.2d 1102, 1109 (1996).       Furthermore, “prosecutorial
     misconduct will not be found where comments were based on
     the evidence or proper inferences therefrom or were only
     oratorical flair.” Commonwealth v. Jones, 542 Pa. 464, 668
     A.2d 491, 514 (1995).

Commonwealth v. Culver, 51 A.3d 866, 876 (Pa. Super. 2012).

     The PCRA court concluded that the prosecutor’s comments in this case

were not improper, and that the prosecutor’s commentary on Appellant’s

credibility was a fair response to the arguments presented during the

defense’s closing argument:

           A large portion of defense counsel's closing argument was
     properly directed at the credibility of the Commonwealth's
     witnesses.     It was these witnesses upon which the
     Commonwealth's case rested. Defense counsel in his closing
     arguments pointed out inconsistencies in [the] testimony and
     directed the jury to consider in their deliberations who they
     thought was lying.

           It is apparent that the District Attorney's attack on the
     credibility of [Appellant] was motivated by and was
     commensurate with the prior attack on the credibility of the
     Commonwealth witnesses. That being the case, the complaint
     now made as to the District Attorney's comment about "lying" in
     his summation is of little merit. Commonwealth v. Johnson,
     527 Pa. 118, 538 A.2d 1303 (1991).

          After a thorough review of the closing arguments made by
     the District Attorney, the Court finds that the comments made

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      were in fair response to the argument of defense counsel. The
      Commonwealth is free to argue that the evidence leads to guilt,
      and is permitted to suggest all favorable and reasonable
      inferences that arise from the evidence. Commonwealth v.
      Sam, 535 Pa. 350, 635 A.2d 603 (1993).

            The prosecutor's words were not designed to inflame the
      passions of the jury or to place the rights of the victim over the
      rights of the accused. The prosecutor's comments were neither
      unfair nor prejudicial, but, merely reinforced the fact that the
      jury had been presented with conflicting stories.         Because
      [Appellant]'s claim lacks merit, we cannot find counsel
      ineffective for failing to object to these remarks.

             Furthermore, the comments made by the prosecutor were
      not such that the unavoidable effect of such would be to
      prejudice the jury, forming in their minds a fixed bias and a
      hostility toward [Appellant] such that they could not weigh the
      evidence objectively and render a true verdict.

PCO, at 23-24.

      We agree with the PCRA court. The Commonwealth and the defense

presented incompatible accounts of Appellant’s sexual abuse of A.J.        The

prosecutor’s statements, indicating that Appellant lied when he testified,

were “based on the evidence or proper inferences therefrom[,]” because the

victim testified to Appellant’s sexual abuse of her and because multiple

witnesses testified that Appellant confessed to having sexually abused the

victim.      Culver, 51 A.3d at 876 (quoting Jones, 668 A.2d at 514).

Nevertheless, when the prosecutor specifically used the phrase “bald faced

lie[,]” Appellant’s defense counsel objected and the trial court sustained that

objection.    N.T. Opening and Closing Statements, 5/8/08-5/13/08, at 50.

Trial counsel cannot be held ineffective for failing to object to a statement

when he, in fact, did object to that statement.


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      Moreover, the prosecutor’s use of the phrase, “in his own warped sick

mind[]” while discussing Appellant was an isolated instance of oratorical flair

that does not accurately reflect the overall tone of the Commonwealth’s

argument, and was unlikely to create a fixed bias and hostility in the jury’s

minds against him.    Commonwealth v. Hutchinson, 25 A.3d 277, 307

(Pa. 2011) (“Any challenged prosecutorial comment must not be viewed in

isolation, but rather must be considered in the context in which it was

offered.”); see also Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.

Super. 2008) (“[P]rosecutorial misconduct does not take place unless the

unavoidable effect of the comments at issue was to prejudice the jurors by

forming in their minds a fixed bias and hostility toward the defendant, thus

impeding their ability to weigh the evidence objectively and render a true

verdict.”) (internal quotation marks omitted).

      Finally, the prosecutor’s repeated use of the pronoun “I” does not rise

to the level of prejudicial prosecutorial misconduct because the use of that

pronoun is so ubiquitous in common speech.         Appellant fails to cite any

authority that suggests that the mere use, or even the repeated use, of the

pronoun “I,” constitutes prosecutorial conduct of such a level to create “a

fixed bias and hostility toward” Appellant.   Holley, supra.    It is apparent

from the record that the prosecutor did not intend his repeated use of the

term “I” as an expression of personal opinion on a relevant matter of




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credibility or fact.    Indeed, this was often demonstrated by the context in

which the term was used.3 Accordingly, we conclude the PCRA court’s denial

of Appellant’s final IAC claim was supported by the record and free of legal

error.

                       Failure to Disclose Exculpatory Evidence

         Finally,   Appellant   asserts   that     the   Commonwealth   violated   his

Fourteenth Amendment due process rights when it failed to disclose

exculpatory evidence. Appellant bases his claim on the testimony given by

____________________________________________


3
    For instance, the prosecutor began his closing argument as follows:

         I am hopefully not going to be as lengthy in this as I'm sure
         maybe you're anxious to get this case and to deliberate in this
         matter and, again, I certainly thank you for your being here last
         week and even more so for your being here today to conclude
         this matter. I know it's a sacrifice for many of you and certainly
         I appreciate it and the rest of our office and I'm sure the Court
         as well appreciates your being here and listening to this case
         because obviously this wasn't an easy case to listen to and I'm
         sure it couldn't have been more unpleasant to listen to the
         details of [A.J.]'s testimony to you as to have over a period of
         some eight years that she was continually touched, licked and
         penetrated by the penis of the Defendant, Michael Protos, her
         stepfather in this case, and as much as Mr. Mehalov would like
         other people to be on trial today, there's only one person on trial
         and that is Michael Protos.

N.T. Opening and Closing Statements, 5/8/08-5/13/08, at 47-48 (emphasis
added).    Obviously the use of “I” in this context was literally personal
opinion, but it was not personal opinion regarding issues of credibility or
material fact. Elsewhere, it was not personal opinion at all, such as when
the prosecutor stated, “I would suggest to you…” or, “I'll let you judge”
before discussing the testimonial evidence and the inferences to be drawn
therefrom. Id. at 49.



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the arresting officer regarding a statement Dr. Tracy made about Appellant

to that officer. The officer admitted that the statement did not appear in the

police report provided to Appellant.   Appellant claims that this statement

could have been used to impeach the testimony of the Commonwealth’s

witnesses.

      Under Brady [v. Maryland, 373 U.S. 83 (1963)], the
      prosecution's failure to divulge exculpatory evidence is a
      violation of a defendant's Fourteenth Amendment due process
      rights. “[T]o establish a Brady violation, a defendant is required
      to demonstrate that exculpatory or impeaching evidence,
      favorable to the defense, was suppressed by the prosecution, to
      the prejudice of the defendant.” Commonwealth v. Gibson,
      597 Pa. 402, 951 A.2d 1110, 1126 (2008).

             The burden of proof is on the defendant to demonstrate
      that the Commonwealth withheld or suppressed evidence. See
      Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898
      (1999). The United States Supreme Court has held, “[T]he
      prosecutor is not required to deliver his entire file to defense
      counsel, but only to disclose evidence favorable to the accused
      that, if suppressed, would deprive the defendant of a fair trial.”
      United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375,
      87 L.Ed.2d 481 (1985) (footnote omitted). Similarly, this Court
      has limited the prosecution's disclosure duty such that it does
      not provide a general right of discovery to defendants. See
      Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284,
      297 (1998). Moreover, we have held that the prosecution is not
      obligated to reveal evidence relating to fruitless leads followed
      by investigators. See Commonwealth v. Crews, 536 Pa. 508,
      640 A.2d 395, 406 (1994).

            “To satisfy the prejudice inquiry, the evidence suppressed
      must have been material to guilt or punishment.” Gibson, 951
      A.2d at 1126-1127 (Pa. 2008). …[M]ateriality extends to
      evidence affecting the credibility of witnesses, rather than
      merely to purely exculpatory evidence. See Giglio v. United
      States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)
      (“When the ‘reliability of a given witness may well be
      determinative of guilt or innocence,’ nondisclosure of evidence

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J-S64017-14


      affecting credibility falls within this general rule.”). Moreover,
      we have held that the protection of Brady extends to the
      defendant's ability to investigate alternate defense theories and
      to formulate trial strategy. See Commonwealth v. Green, 536
      Pa. 599, 640 A.2d 1242, 1245 (1994) (holding that courts must
      “consider any adverse effect that the prosecutor's failure to
      disclose might have had on not only the presentation of the
      defense at trial, but the preparation of the defense as well.”).
      “[F]avorable evidence is material, and constitutional error results
      from its suppression by the government, if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different.” Kyles v.
      Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 131 L.Ed.2d
      490 (1995) (internal quotation marks omitted).

Com. v. Cam Ly, 980 A.2d 61, 75-76 (Pa. 2009).

      Appellant describes the undisclosed statement as follows: “Specifically,

the arresting officer stated that he spoke to Dr. Scott Tracy regarding the

nature of the investigation and that during the conversation the doctor

denied that … Appellant made allegations to the arresting officer.”

Appellant’s Brief at 26 (emphasis added). Later, Appellant states that “the

arresting officer did not disclose that he had spoken to Dr. Tracy and did not

disclose that the doctor stated that … Appellant made no allegations to the

arresting officer.”   Id. (emphasis added).    He then argues that, “[T]his

evidence is favorable to Appellant as it contradicts the prosecuting

witnesses[’] testimony that Appellant’s interaction with Dr. Tracy was a

direct result of the alleged crimes.” Id.

      Appellant’s explanation of this issue is nearly incomprehensible.

Appellant does not explain the nature of the “allegations” to which he refers.

Usually, one does not make “allegations” against oneself – so it is not



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entirely clear if Appellant is claiming that Dr. Tracy’s statement was that

Appellant did not admit to the doctor that he sexually molested A.J.,

although that is the only rational argument for a Brady claim that we can

ascertain from Appellant’s puzzling terminology.

      Assuming that is the nature of his Brady claim, Appellant is still not

entitled to relief. Appellant cannot demonstrate that prejudice resulted from

the Commonwealth’s failure to disclose Dr. Tracy’s statement.         As noted

above with regard the IAC claim Appellant raises involving Dr. Tracy, the

doctor   could   not   have   provided   testimony   to   impeach   any   of   the

Commonwealth’s witnesses.         None of the Commonwealth’s witnesses

testified that Appellant attended therapy with Dr. Tracy for the purpose of

dealing with his molestation of the victim. Therefore, the Commonwealth’s

failure to disclose Dr. Tracy’s statement to the arresting officer was not

potential impeachment evidence that could be considered “material to guilt

or punishment.” Cam Ly, 980 A.2d at 76. Accordingly, Appellant’s Brady

claim lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/06/2014


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