J-S49016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                       v.

KEVIN EARL LAPE

                            Appellant                  No. 1559 WDA 2016


            Appeal from the PCRA Order Dated September 16, 2016
              In the Court of Common Pleas of Somerset County
             Criminal Division at No(s): CP-56-CR-0000612-2013

BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                          FILED DECEMBER 05, 2017

        Appellant, Kevin Earl Lape, appeals from the order dismissing his first

petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. We affirm.

        On March 25, 2015, a jury convicted Appellant of one count of each of

the following five offenses:          involuntary deviate sexual intercourse by

forcible compulsion or threat of forcible compulsion; involuntary deviate

sexual intercourse with a child under 16; aggravated indecent assault on a

child under 16; indecent assault on a child under 16; and corruption of

minors.1     On July 21, 2015, the trial court sentenced Appellant to an

____________________________________________
*   Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3123(a)(1), 3123(a)(7); 3125(a)(8); 3126(a)(8); and
6301(a)(1), respectively.
J-S49016-17


aggregate term of 10 to 20 years’ incarceration. 2 Appellant did not file post-

sentence motions or a direct appeal.

        On March 28, 2016, Appellant filed a pro se PCRA petition, citing the

“improper obstruction by government officials of [his] right to appeal where

a meritorious appealable issue existed and was properly preserved in the

trial   court”   pursuant    to   42    Pa.C.S.     §   9543(a)(2)(iv),   and   alleging

ineffectiveness of trial counsel.         The PCRA court appointed counsel for

Appellant on March 30, 2016. Counsel filed an amended PCRA petition in

which Appellant additionally stated that his trial counsel “withdrew from

representation shortly after sentencing and, therefore, would not file an

appeal on his behalf.” Appellant also averred that he “voiced” to staff at the

Somerset County Jail “following his sentencing . . . that he wished to

appeal”; that he was provided with an application for the public defender’s

office but no pen; that by the time he received a pen the 30 day appeal

period had passed; and “but for” the delay caused by the staff at the

Somerset County Jail, he would have filed a timely appeal in which to assert

a weight of the evidence claim.                With regard to trial counsel’s alleged

ineffectiveness and Appellant’s weight claim, Appellant stated that he had “a

meritorious ground for appeal” because of: his “limited to no opportunity to

commit the alleged offenses due to him being away all week as an over the

____________________________________________
2The trial court additionally found Appellant to be a sexually violent predator
pursuant to 42 Pa.C.S. § 9791.


                                           -2-
J-S49016-17


road truck driver and the constant presence of his wife and sons with himself

and the alleged victim”; the victim’s “absence [and] non-reporting of the

alleged incidents in proximity to their alleged occurrences”; and his

“continued denial of the incidents, and the total lack of physical/scientific

evidence presented by the Commonwealth, among other evidence.”            The

PCRA court held an evidentiary hearing on September 16, 2016. After the

hearing, the PCRA court issued an order denying post-conviction relief.

Appellant filed a timely appeal on October 13, 2016.

      Appellant raises two issues for our review:

      1. Whether the lower court erred in dismissing Appellant’s claim
         for post-conviction relief in the form of reinstatement of his
         appellate rights nunc pro tunc under Section 9543(a)(2)(iv) of
         the Post-Conviction Collateral Relief Act (“PCRA”)?

      2. Whether the lower court erred in dismissing Appellant’s claim
         for  ineffective  assistance   of   counsel   pursuant      to
         Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)?

Appellant’s Brief at 3.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied, 839

A.2d 352 (Pa. 2003).      Further, the law presumes counsel has rendered

effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.

Super. 2010).      The burden of demonstrating ineffectiveness rests on

Appellant. Id. To satisfy this burden, Appellant must plead and prove by a

                                    -3-
J-S49016-17


preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003).3 Failure to satisfy any prong of

the test will result in rejection of the appellant’s ineffective assistance of

counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

       The PCRA court commenced Appellant’s evidentiary hearing by noting

that, in addition to reviewing both Appellant’s pro se and amended PCRA

petitions, it reviewed the entire trial transcript prior to the PCRA hearing.

N.T., 9/16/16, at 1. Appellant then testified, as did his trial counsel, Sara

Huston, Esquire. The PCRA court accurately cited their testimony in denying

Appellant relief.    With regard to its denial of Appellant’s request to file a

direct appeal nunc pro tunc, the PCRA court determined:

       In sum: [Appellant] was aware of his right to appeal and also of
       the time in which he had to file it; yet he did not file, or attempt
       to file, a Notice of Appeal to the Superior Court. [Appellant] was
       provided with the resources to contact the Public Defender’s
       Office in a timely manner, and, furthermore, no evidence was
       presented of any government obstruction of his appellate rights.
       For these reasons, we found that [Appellant] had failed to carry
       his burden of proving that improper obstruction prevented him
       from pursuing his direct appeal.
____________________________________________
3  Appellant and the PCRA court reference this tripartite test, respectively
citing Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), and
Commonwealth v. Weiss, 81 A.2d 767 (Pa. 2013).


                                           -4-
J-S49016-17


PCRA Ct. Op., 1/23/17, at 5.    The PCRA court then thoroughly addressed

Appellant’s ineffectiveness claim, properly citing both legal authorities and

the record, in discussing and discounting each of Appellant’s allegations of

trial counsel’s ineffectiveness. See id. at 5-19. The PCRA court concluded:

           Here, notwithstanding other witnesses’ testimony for the
     prosecution and defense, the main evidence essentially boiled
     down to the victim’s word against [Appellant’s].         Attorney
     Huston presented a coherent theory of the case . . . Simply put,
     the jury chose not to accept the defense theory of the case.

Id. at 18. As the PCRA court’s determinations are supported by the record

and are free of error, we affirm the order, and adopt the PCRA court’s

comprehensive and well-reasoned opinion as our own in deciding this

appeal.   The parties shall attach a copy of the PCRA court’s January 23,

2017 opinion when relevant to any future pleadings.

     Order affirmed.

     Judge Dubow joins the memorandum.

     Justice Fitzgerald notes dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2017



                                    -5-
J-S49016-17




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                                  SOME l'?!SE    li.   PA

                             '1011 JAN   23    FM      3: 36

                            FILED FOR RECORD
COMMONWEALTH                                                         IN THE COURT OF COMMON
                                                                    PLEAS OF SOMERSET COUNTY,
                                                                           PENNSYLVANIA
                            v.

                                                                        NO. 612 CRIMINAL 2013
KEVIN EARL LAPE,

                                                                      POST -CONVICTION RELIEF
                            Petitioner/Defendant.


                             OPINION PURSUANT TO Pa.RA.P. 1925(a)

         This Opinion is issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

I. FACTUAL AND PROCEDURAL HISTORY

         On November 15, 2013, an Information was filed charging the defendant, Kevin Earl

Lape, with committing involuntary deviate sexual intercourse ("IDSI") by forcible

compulsion, 18 Pa. Cons. Stat.             §   3123(a)(1); three counts of IDSI,           18 Pa.   Cons. Stat.    §


3123(a)(7); aggravated indecent assault,               18   Pa. Cons. Stat.   §   3125(1); corruption of minors,

18 Pa.   Cons. Stat.   §   6301(a)(1)(ii); terroristic threats, 18 Pa. Cons. Stat.         §   2706(a)(1); and two

counts of indecent assault, 18 Pa. Cons. Stat.                  §   3126(a)(1).     These charges arose out of

allegations that Defendant had engaged in multiple instances of sexually abusing his

biological daughter over the course of five years.

         Defendant pleaded not guilty to all charges on July 14, 2014 and again on September

15, 2014. The case proceeded to trial on October 20 and 21, 2014, and resulted in a mistrial,

the jurors having indicated that they were deadlocked after approximately six hours of

doliboration.
         The Assistant District Attorney advised by letter on November 26, 2014 that her office

intended to re -try this case and it should therefore remain on the list for trial. Defendant again

pleaded not guilty to all charges on December 8, 2014. The case proceeded to trial on March

24 and 25, 2015. The Commonwealth withdrew counts three, four, and nine because they

were duplicates of other counts, leaving the following six counts: (1) IDSI by forcible

compulsion (§ 3123(a)(1)); (2) IDSI with a child under          16 (§   3123(a)(7)); (3) indecent assault

on a child under 16, defendant at least four years older (§ 3126(a)(8)); (4) aggravated indecent

assault on a child under 16, defendant at least four years older (§ 3125(a)(8)); (5) corruption

of minors   (§   2706(a)(1)); and (6) terroristic threats (§ 2706(a)(1)).

        On March 25, 2015, the jury found Defendant guilty of all charges except the

terroristic threats. On July 21, 2015, Defendant was sentenced, inter alia, to an aggregate ten

to twenty years' incarceration in a State Correctional Institution. A Sexually Violent Predator

hearing was also held on July 21, 2015, and this Court found there to be clear and convincing

evidence establishing that Defendant is a Sexually Violent Predator.

        Defendant filed no direct appeal.            He filed a pro se Post -Conviction Relief Act

("PCRA") petition on March 28, 2016, and, having been granted in forma pauperis status,

Defendant later filed, through counsel, an Amended Motion for Post -Conviction Relief

(September 16, 2016)2 We held a hearing on Defendant's Petition on September 21, 2016, at

which time we dismissed the Petition.

        Defendant filed a Notice of Appeal to the Superior Court on October 13, 2016. On

October 18, 2016, we issued an Order pursuant to Pa.R.A.P. 1925(b) directing Defendant to

file a concise statement of matters complained of on appeal, with which Defendant complied

  Defense counsel stated at the hearing that the Amended Motion raises all of the same issues as the initial
Petition, so our recapitulation is confined to the representations in the Amended Motion and the evidence
adduced at the hearing. See Hr'g Tr. 1-2, Sep..16, 2016.

                                                 2
on November 4, 2016.


II. ANALYSIS

       Defendant raises two distinct assertions of error on appeal: (1) "the Court erred in

dismissing his claim for post-conviction relief in the form of reinstatement of his appellate

rights nun[c] pro tunc under Section 9543(a)(2)(iv) of the [PCRA]"; and (2) "the Court erred

in dismissing his claim for ineffective assistance of counsel." Statement of Matters Compl. of

on Appeal ¶113(a), (b). The remainder of Defendant's Statement consists of supporting bases

for the ineffective assistance of counsel ("IAC") claim.

        A. Reinstatement of Defendant's Appellate Rights Nunc Pro Tune

       Defendant asserts that his trial counsel, Attorney Sara Huston, "withdrew as counsel

shortly after sentencing and, therefore, would not file an appeal on his behalf." Def 's Amen.

Mot. ¶ 7, Sep. 16, 2016. During the early days of his incarceration, Defendant allegedly had

indicated to staff members in the Somerset County Jail that he wanted to file an appeal, and

that he was provided with an application for the public defender's office, but no pen with

which to fill out the application. Id. at 111 8-9.

        Defendant further alleges that "by the time he was provided a pen by the staff of the

Somerset County Jail and he submitted said application...he was informed by the Public

Defender's office that 30 days had passed since his sentencing and it was too late to appeal."

Id. at ¶ 10. Consequently, "but for the delay caused by the staff of the County Jail to provide

him with an application to the Public Defender's [O]ffice to appeal his casejd he would have

been able to perfect a timely appeal." Id.    at 1111.


        Defendant's testimony, however, belies these claims.          When asked on direct

examination when he had asked fnr the Public Defender's form he testified, "Uh, Probably
that day, next day after...The next day." Hr'g Tr. 5. He received the form four days later. Id.

This puts Defendant's receipt of the form to request a Public Defender at five days after

sentencing. Defendant was asked when he had obtained a pen and was able tot fill out the

application; his response was: "Uh, it would be two days after I got the application. I   asked-

finally got a pen. So, it would have been in the second week...that I was there." Id. rat 6.

After he filled out the application, he "handed it back to the CO [corrections officer] for them

to send it over to the Public Defender's Office." Id. So, Defendant was able to fill out the

application within seven or eight days of sentencing, meaning his delay in filing an appeal,

which he attributes to not having been provided a pen, or an application, is demonstrably

false, by his own testimony. See also id. at 9.

       Defendant testified that he has "no idea" whether the Public Defender's Office

received his application. Id. at 6. He admitted on cross-examination that he filled out a post-

sentence rights form with his attorney, and that he recalled being told he had thirty days in

which to appeal. Id. at 8. Though Defendant was restricted from phone use for the first week,

id. at 9, his use was not restricted thereafter. Id. at 10. However, Defendant did not call to

ask the Public Defender's Office about appealing because, "I thought the paperwork I sent

over, he would come over and talk to me about it." Id.

       Defendant does not remember to which officer he had turned in the form. Id. at 10.

After he gave the form to the officer, he remained in Somerset County Jail for "maybe three

days" before he was transferred and spent four days in isolation at "Western in Pittsburgh,"

where he was not permitted to make phone calls or mail letters. Id. at 6-7. Defendant spent

two weeks in Western. Id. at 11. Defendant then did another week to week -and -a-half of

isolation in SCI -Camp Hill, and then when he went to his "home block there," he filled out



                                            4
another application to the Public Defender's Office. Id. at 7, 11. At this time, the Public

Defender informed Defendant that the deadline for filing an appeal had passed and that

Defendant needed to file a PCRA petition. Id. at 7.

         We denied Defendant's request under    §   9543(a)(2)(iv) based upon our finding that he

failed to prove by a preponderance of the evidence that there was an improper obstruction by

a government official or officials. Hr'g Tr. 20. As Defendant admitted in his testimony, he

was well aware of the thirty -day appeal period. Moreover, contrary to the representations in

his Amended Motion, Defendant was given a pen in time to fill out his application for a

Public Defender, but he did not avail himself of the opportunity to call the Public Defender's

office to confirm receipt, nor did he file the Notice of Appeal himself to preserve the appeal.

Finally, as the Commonwealth has correctly noted, "Simply...filling out the form for the

Public Defender did not assure him the Public Defender was going to file the appeal." Id. at

19-20.

         In sum: Defendant was aware of his right to appeal and also of the time in which he

had to file it; yet he did not file, or attempt to file, a Notice of Appeal to the Superior Court.

Defendant was provided with the resources to contact the Public Defender's Office in a timely

manner, and, furthermore, no evidence was presented of any government obstruction of his

appellate rights. For these reasons, we found that Defendant had failed to carry his burden of

proving that improper obstruction prevented him from pursuing his direct appeal.

         B. Ineffective Assistance of Counsel

         Defendant next alleges IAC based on multiple grounds: (1) Attorney Huston "failed to

file an appeal or post -sentence. motion," Amen. Mot.     1111   14-16; (2) she failed to "clarify" the

Commonwealth's expert's testimony, and also failed to "[e]mphasize [a] [l]ack of [s]cientific



                                            5
[e]vidence," id. at TT 18-29; (3) she "explicitly called [defense witness Katie Luttner] as a lay

witness regardless [of] her credentials as a therapist," id. at        r   31-35; (4) she failed to

emphasize the "limited opportunity" Defendant had to commit these offenses against his

daughter, id. at   r     37-44; and (5) Attorney Huston failed to cross-examine the victim about

allegedly inconsistent statements. Id. at in 46-51.

       When ineffective assistance of counsel is raised, a petitioner must prove, pursuant to     §



9543(2)(ii), that his conviction or sentence resulted from "[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."             A

successful showing of ineffective assistance of counsel requires the petitioner to satisfy the

performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

       Strickland is a two-part test: "First, the defendant must show that counsel's

performance was deficient," which requires "showing that counsel made errors so serious that

the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment." Id. at 687. Second, "the defendant must show that the deficient performance

prejudiced the defense," which requires "showing that counsel's errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable." Id. In Pennsylvania, the

Strickland test has been parsed into three distinct 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.   Weiss, 81 A.3d 767, 782 (Pa. 2013). The Pennsylvania Supreme Court has
not required to analyze the elements of an ineffectiveness claim iii 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." Id. at 783 (internal citations omitted).

        Strickland itself makes clear that "[w]hen a convicted defendant complains of the

ineffectiveness of counsel's assistance, the defendant must show that counsel's representation

fell below an objective standard of reasonableness." 466 U.S. at 687-88.                 Strickland also

emphasizes        that "ifiudicial      scrutiny of counsel's         performance     must   be   highly

deferential...Because of the difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial strategy." Id.

at 689 (internal quotations and citation omitted) (emphasis added).                 See also, Thomas   v.


Varner, 428 F.3d 491, 499 (3d. Cir. 2005).

        We next address each of Defendant's assertions of ineffectiveness.

             1.   Failure to File an Appeal or Post -Sentence Motion

        Defendant asserts that "Trial Counsel failed to file an appeal or post sentence motion.

If Trial Counsel failed to file said appeal[,] it would constitute per se ineffective assistance of

counsel. Com.      v.   Lantzy, 736 A.2d 564, 571 (Pa. 1999)."

        Defendant was sentenced on July 21, 2015. His trial attorney, Ms. Huston, submitted

a Motion to Withdraw as Counsel on July 23, 201).                     In her Motion, Attorney Huston

represented, "It was specifically contemplated that if appeal and/or post -sentence matter was

at issue, a new fee agreement would have to be reached." Mot. to Withdraw as Counsel ¶ 1,

Jul. 23, 2015. She also stated that she had explained to Defendant the deadlines for his post -



                                                     7
sentence rights and "outlin[ed] the basic details of the fee agreement," however, "Mr. Lape

has not requested any post -sentence relief," which was consequently the reason Attorney

Huston sought to withdraw. Id. at ¶¶ 4-5. This Court granted Attorney Huston's Motion on

July 24, 2015 (Cascio, J.).

       Attorney Huston testified, at the PCRA evidentiary hearing, that Defendant had not

instructed her to file an appeal. Hr'g Tr. 27, Sept. 16, 2016. Furthermore, Defendant did not

ask her to file the appeal on the day of the sentencing, though he did inquire as to the cost. Id.

Defendant corroborates that he asked Ms. Huston "what it would take to...appeal [his] case,"

and after she told him she required a $7,000 retainer, he decided to ask for a Public

Defender's form to fill out. Id. at 5. There was no testimony from Defendant that he asked

Attorney Huston to file a Notice of Appeal for him, though he was aware that he had thirty

days from the date of sentencing to appeal. Id. at 8.

       The law on this issue is that "[c]ounsel's unjustified failure to file a direct appeal will

constitute prejudice per se under [Commonwealth         v.   Lantzy, 736 A.2d 564, 572], if the

petitioner can establish that he did ask counsel to file an appeal." Commonwealth       v.   Qualls,

785 A.2d 1007, 1010 (Pa. Super. Ct. 2001) (citing Commonwealth             v.   Harmon, 738 A.2d

1023, 1024 (Pa. Super. Ct. 1999)). Here, there is no question that Defendant was aware of his

post -sentence rights.   Defendant provided no testimony that he actually asked Attorney

Huston to file a Notice of Appeal, or any other post-sentence motions; and there is in fact

testimony by Attorney Huston that Defendant did not ask her to file any post -sentence

motions nor a Notice of Appeal.

        We find the facts in this case to be distinguishable from the facts in cases such as

Qualls, where the trial counsel admitted that he "disregard[ed] the known and acknowledged



                                             8
fact that his client cdefmitely' wanted to file an appeal," 785 A.3d at 1011, and Lantzy, where

the holding was "[w]here, as here, the defendant, upon the advice of his counsel, forfeits his

appellate rights in return for an illusory modification of his sentence, such waiver cannot

reasonably deemed valid." 736 A.2d at 572-73. We believe these facts take the case sub

judice out of the ambit of Lantzy and its progeny, leading us to therefore conclude that

Attorney Huston was not per se ineffective.

             2. Failure to Clarify the Commonwealth's      Expert's Opinion

          During the trial, the prosecution called Dr. Paula Balboni George to testify, Dr.

George being the physician who examined the victim. After explaining the protocol for

evaluating possible abuse victims, Dr. George testified, "No, there were not" any "physical

findings with regards to [the victim].". Trial Tr. 1.52, Mar. 24, 2015. Dr. George was then

asked whether that fact was unusual, to which Dr. George replied, "No. I would have been

very surprised if I had found anything suggestive of abuse because what she reported would

not be likely to leave any medical finding." Id.

          On cross-examination, Attorney Huston inquired as to the doctor's methodology for

determining whether the victim's hymen was "intact," and whether the victim's hymen had

suffered any damage, to which Dr. George responded that the hymen was undamaged; and,

though sexual intercourse does "[n]ot usually" cause "a lacerated hymen," "[i]t can." Id. at

1.54-55.    Attorney Huston returned to Dr. George's testimony in her closing, where she

stated,

                 The doctor told you there were no physical findings, and
                 certainly that's typical in a case like this...but if you listened
                 closely to the doctor, she also indicated that she [the victim]
                 wouldn't have had necessarily lacerations or bruising or
                 redness, even if she would have evaluated her a day or two after
                 Zrr   11   d incident


                                             9
                 She said there really wasn't a report of penetration, but what did
                 [the victim] say. She got on the stand and said there was
                 penetration; that when she first told her houseparent she was
                 having this bleeding and pain associated with her menstrual
                 cycle and they inquired why, she said she was raped. Does that
                 jibe with the doctor's understanding of it or her explanation of it
                 yesterday?

                 Something you have to ask yourself.

Trial Tr. 2.13, Mar. 25, 2015.

        We believe there is no arguable merit to this claim. Defendant argues that Attorney

Huston's representation was deficient because she "did not call an expert witness to clarify or

challenge Dr. George's testimony," nor did she "call an expert witness to illustrate" the point

that Dr. George's testimony "actually corroborated Mr. Lape's, that he did not sexually abuse

his daughter."     Def.'s Amen. Mot.     1111   27-29.   Dr. George's testified that there were no

physical findings to corroborate the victim's allegations. This lack of physical evidence, Dr.

George observed though, is generally consistent with what the victim was alleging. It is

obvious, however, that this lack of physical evidence is equally consistent with Defendant's

claim that no abuse occurred. We did not believe an expert witness was necessary to establish

this point. Moreover, we were unwilling to find that Attorney Huston was ineffective simply

because she did not expressly state this common sense conclusion.

        We further note that Attorney Huston made use of Dr. George's testimony to impeach

the credibility of the victim's testimony, as illustrated supra; that is, trial counsel argued that

the victim claimed that she had suffered bleeding and pain related to her rape, which is in

tension with the -doctor's findings that no traces of physical injury were observed. Trial Tr.

2.13. Attorney Huston's strategy was to use Dr. George's testimony not to emphasize the

obvious ennrhicinn that no abuse had occurred, but rather to impeach the victim's prior


                                                 10
claims. We found nothing unreasonable about pursuing this strategy.

            3. Calling Ms.    Luttner as a Lay Witness

        The defense called Katie Luttner, who had been the victim's therapist, to testify as to

her observations of the victim and Defendant outside of her professional capacity. Trial Tr.

1.132. She testified that she had never observed any unusual behavior between Defendant

and the victim that would have raised a "red flag with respect to sexual abuse." Id. at 1.133.

She was briefly cross-examined as to the amount of time she observed the victim and

Defendant. Id. at 1.133-34.

        Defendant now alleges that she should have been called as an expert witness, and a

failure to call Ms. Luttner as a witness "affected the outcome of the trial, and there was no

strategic reason not to call Ms. Luttner as an expert...."       Def.'s Amen. Mot. IT 34-35.

Attorney Huston testified that she believed that a privilege may have applied, limiting Ms.

Luttner's ability to testify in her capacity as the victim's therapist; Ms. Huston also expressed

doubt that Ms. Luttner could have qualified as an expert. Hr'g Tr. 37. The Assistant District

Attorney represented that this Court had ruled in the first trial that Ms. Luttner was not

permitted to be qualified as an expert. Id. at 39. This is partially correct: at the first trial,

Attorney Huston sought to call Ms. Luttner as a witness; the Commonwealth objected, citing

the Mental Health Act, and arguing that Ms. Luttner was not permitted to "testify as to

anything involving the family in her capacity as a counselor, and she's still a counselor

today...." Trial Tr. 1.139, Oct. 20, 2014. This Court permitted Ms. Lultner to be called as a

witness provided Ms. Luttner not testify "as to what she did" in her capacity as a counselor.

Id. at 1.140.

        So, while there was not an express ruling that Ms. Luttner could not be qualified as an



                                            11
expert, it is clear from the record that Ms. Luttner was permitted to testify subject to her

testimony being limited to observations made outside of her capacity as a therapist. For this

reason, we noted at the evidentiary hearing that "that's the law of the case...." Hr'g Tr. 39.

While we were under the impression at that time that the specific issue was Ms. Luttner's

qualification, the same reasoning applies to the ruling that Ms. Luttner was only permitted to

testify in a lay capacity because of privacy concerns related to the Mental Health Act. In any

event, this Court's ruling in the first trial made clear the parameters under which Ms. Luttner

was permitted to testify, which explains why Attorney Huston only called Ms. Luttner as a lay

witness.

       Based on this Court's ruling in the prior trial, Attorney Huston had no reason to

believe she could call Ms. Luttner to testify as an expert witness, so she cannot be faulted for

not attempting to call Ms. Luttner as an expert. For this reason, we submit that there is no

arguable merit to this claim and it was properly dismissed.

           4.   Failure to Emphasize Defendant's Limited Opportunity to Commit These
                Offenses

       Defendant next alleges that "if Trial Counsel would have emphasized his lack of

opportunity to commit said offenses, and [the victim's] abundance of opportunity to report

said offenses, the outcome of the trial would have been different] and not emphasizing said

evidence had no strategic purpose, thus warranting a finding [of] ineffective assistance of

counsel under Pierce." Def.'s Amen. Mot. ¶ 44.

       At the evidentiary hearing, PCRA counsel asked Ms. Huston whether she made "clear

to the Jury that there was a limited opportunity or limited time where Mr. Lape and [the

victim] were alone together," and Attorney Huston testified,




                                            12
                 Idon't necessarily think that was one of my top five points I
                wanted to stress. Certainly, it was considered, and absolutely
                the fact that she was at Milton Hershey School was one of the
                biggest[,] because she had resources to report to and she was
                away from the home[,] and she returned to the home where she
                was indicating there was this abuse. So, that was certainly
                explored at length, the fact that she was away from the home,
                 came back.

Hr'g Tr. 32.

       While Attorney Huston elicited testimony about the limited time during which

Defendant could have committed this abuse, her articulated strategy was to craft a narrative

for the jury in which the dubiousness of the victim's behavior was emphasized. As Attorney

Huston argued in her closing, "Guidance counselors, teachers, houseparents.            During that

period of time from 4th grade until she returned [from Milton Hershey] to the Lapes in 2013,

a period   of years had passed and again there was no report. Despite her being away from Mr.

Lape, not being under his thumb, no report of abuse at that time." Trial Tr. 2.15, Mar. 25,

2015. Attorney Huston's theory of the case was that the victim was a troubled child who "had

some behavioral problems by the time she ended up with the Lapes," that "[p]erhaps there

was some resentment between her and [her stepmother, Rebecca,] since Rebecca was

typically the parent there, the one that was home, not over -the -road, and [the victim] was

mad." Id. at 2.14, 2.15. It

                 certainly would be understandable if [the victim] had some
                 resentment or jealousy of her brothers who lived this life of
                 stability in one home their entire life, that she didn't have... We
                 also heard as an underlying theme...that [the victim] did often
                 seek out attention, again understandably so in light of what she
                 had gone through in her life...it doesn't matter what kind of
                 attention that is...It's attention.

Id. at 2.16. It was the defense's theory of the case that the victim made up these allegations of

abuse in order to gamer more attention for herself, because Defendant had "some problems


                                              13
with [the victim], he was gone a lot of the time, but he did the best he could. He knew that he

was an over-the -road trucker. He had to provide for his family; and when he did that, he was

away,.which left Rebecca with a lot of the duties." Id. at 2.16-2.17.

       As the Pennsylvania Supreme Court has stated, "Generally, where matters of strategy

and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose

a particular course that had some reasonable basis designed to effectuate his client's interest."

Commonwealth    v.   Howard, 719 A.2d 233, 237 (Pa. 1998). A claim of ineffective assistance

generally cannot "succeed through comparing, by hindsight, the trial strategy employed with

alternatives not pursued." Id.     Furthermore, a "finding that a chosen strategy lacked a

reasonable basis is not warranted unless it can be concluded that an alternative not chosen

offered a potential for success substantially greater than the course actually pursued."

       We believe our presentation of Attorney Huston's argument illustrates that she made

use of the fact that Defendant was an over -the -road truck driver; that the victim was at a

boarding school; and that Defendant's wife Rebecca was the homemaker, all with the aim of

explaining the victim's motivation for allegedly making up these allegations.          This is a

strategy, the aim of which is to undermine the victim's story by explaining why the victim

would have concocted these alleged falsehoods, while also arguing that the victim's behavior

otherwise does not make any sense, because, for instance, she had ample time to report the

abuse while away (for years) from Defendant, yet she failed to do so.

        Defendant now alleges that "if Trial Counsel would have emphasized his lack of

opportunity to commit said offenses, and [the victim's] abundance of opportunity to report

said offenses, the outcome of the trial would have been different...thus warranting a finding

of ineffective assistance of counsel...." Def.'s Amen. Mot. ¶ 44. However, Attorney Huston


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clearly argued at length that the victim had plenty of time to report the abuse, yet failed to;

and while counsel chose to use Defendant's regular absence from the household to provide

motive for the victim to lie, rather than to reiterate Defendant's "limited opportunity" to abue

the victim, we cannot say that, had Attorney Huston focused more on Defendant's limited

opportunity, that the potential for success would have been "substantially greater."

       We therefore submit that Attorney Huston had a reasonable strategy which should not

be compared in hindsight with alternatives not pursued. For this reason, we found that this

basis for Defendant's IAC claim was insufficient.

           5.   Failure to Cross-Examine the Victim Regarding Allegedly Inconsistent
                Statements

       Though the victim claimed to have been abused, she nevertheless still wanted to return

home. One of the reasons the victim cited for wanting to return home was that she wanted to

live with her brothers again because she "missed them so much," and, as she stated, "I

expected that I was 13, if sex was happening, pregnancy could happen, that he wouldn't risk

it, that he would leave me alone." Trial Tr. 1.78. See also Def.'s Amen. Mot. ¶¶ 46-51.

Defendant claims that "Trial Counsel not inquiring into [the Victim's] nonsensical and bizarre

response as to why she returned home despite alleged ongoing sexual abuse affected the

outcome of the trial and did not serve a strategic purpose:"        Def.'s Amen. Mot. ¶ 51.

Defendant argues, "The fact that a majority of the allegations [the victim] had made and

testified to did not involve the type [of] sexual conduct that would result in pregnancy, her

answer as to why she thought the sexual abuse would stop and she was safe to return

home...should have at the least [been] explored by trial counsel during the cross...or have

been mentioned in her closing argument." Id.

       we frctly nhcerve that the victim testified that Defendant would rub            his penis


                                            15
"underneath [her] vaginal area, back and forth," and that it was "on top of the lips of [her]

vagina," and that it also went "inside the lips," though "[n]ot very far. It was just usually la]

back and forth motion."         Trial Tr. 1.73.    There was thus testimony that some vaginal

intercourse had occurred.

       Attorney Huston was asked at the evidentiary hearing why she "didn't press the matter

that [the victim] was coming home because she thought she would be left alone for

pregnancy, even though a majority of her allegations were of acts that would not lead to

pregnancy...."   Hr'g Tr. 34.        Ms. Huston responded, "I spent a lot of time deciding

strategically what way      I   would approach the cross-examination of [the victim], and I

believed...I would be tactful and rather respectful of her because    I   thought the Jury would

respect that based on...my feeling towards the situation." Id. She continued, "So a lot of my

cross-examination was limited...not...in the sense that it didn't hit everything substantively,

but I didn't feel it was strategically the best decision to come at her very aggressively.      I


thought I could build a relationship with her where she wasn't afraid to answer the question."

Id.

       We disagree that the victim's statements about pregnancy, which factored into her

decision about coming home, are "inconsistent" with her allegations.            "Inconsistent" is

commonly defined as "not in agreement, harmony, or accord; incompatible... self-

contradictory." Webster's New World College Dictionary 723 (4th ed.). As we illustrated

supra, Defendant sexually abused the victim in various ways, including mild penetration of

her vagina, which is entirely consistent with the victim's belief that a pregnancy could arise

from this abuse, and that this would disincentivize further abuse. For these reasons, we found

that this allegation failed to demonstrate arguable merit (as there were no "inconsistent



                                              16
statements," per se) and Attorney Huston articulated a reasonable strategy for not subjecting

the victim to ardent cross on this matter.

         We observe that Defendant, in his Statement of Matters Complained of on Appeal,

also argues that a "failure to make prompt complaint" jury instruction should have been

requested. Def.'s Statement ¶ 3(g). However, our review of the Amended Motion has not

uncovered this claim. We notice that there was one question at the evidentiary hearing which

was "Do you remember if there was a discussion as to whether or not there would be the

prompt complaint Jury instruction given?" to which Attorney Huston testified, "No,       I   don't

believe there was." Hr'g Tr. 26. There was no further development of this issue, such as why

Attorney Huston did not make this request.

         We believe Defendant insufficiently developed the record on this point. Further, this

very fact was at the core of Attorney Huston's strategy, in that she spent a large section of her

closing argument devoted to the implausibility of abuse given that the victim had years away

from Defendant, while in boarding school, to report the abuse, but did not. We therefore

believe that there was no prejudice to Defendant such that the jury instruction would have a

reasonable probability of changing the outcome of the trial.

             6. Cumulative Prejudice

         While it is well -settled that "no number of failed claims may collectively warrant

relief if they fail to do so individually," when "the failure of individual claims is grounded in

lack of prejudice, then the cumulative prejudice from those individual claimsmay prupc        y Lc


assessed." Commonwealth       v.   Spotz, 18 A.3d 244, 321 (Pa. 2011). See also, Commonwealth

v.   Simpson, 112 A.3d 1194, 1205-06 (Pa. 2015).

         None of Defendant's claims failed based solely on lack of prejudice, except for the



                                              17
issue of the prompt delay jury instruction. Therefore, there are no other individual claims to

aggregate in order to determine cumulative prejudice. Thus, we also disagree that cumulative

prejudice warrants a finding of ineffective assistance of counsel.


HI. CONCLUSION

         "In criminal proceedings, the credibility of witnesses and weight of evidence are

determinations that lie solely with the trier of fact, [which] is free to believe all, part, or none

of the evidence." Commonwealth      v.   Lewis, 911 A.2d 558, 566 (Pa. Super. Ct. 2006). And it

has long been recognized that "the uncorroborated testimony of a sexual assault victim, if

believed by the trier of fact, is sufficient to convict a defendant, despite contrary evidence

from the defense witnesses," Commonwealth           v.   Charlton, 902 A.2d 554, 562 (Pa. Super. Ct.

2006).

         Here, notwithstanding other witnesses' testimony for the prosecution and defense, the

main evidence essentially boiled down to the victim's word against the Defendant's.

Attorney Huston presented a coherent theory of the case that posited that the victim made

these allegations up because she was resentful of the restrictions in the Lape household, the

attention her brothers were getting which she felt entitled to, and anger at her father for being

absent so often. Simply put, the jury chose not to accept the defense theory of the case.

         We are mindful that that it is "all too tempting for a defendant to second-guess

counsel's assistance after conviction or adverse sentence, and it is all too easy for a court,

examining counsel's defense after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable," Strickland, 466 U.S. at 689. In this case, we

resisted the temptation to blame the outcome on ineffective assistance of counsel from

Attorney Huston      In our view Attorney Huston's conduct fell well within the range of


                                               18
reasonable professional assistance.



                                                   RESPECTFULLY SUBMITTED:




Dated: January 23, 2017

For the Commonwealth:         Catherine A. Primavera-Zakucia, Esq.
For Defendant:                David T. Leake, Esq.




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