J. S63040/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
JEFFREY R. RITENOUR,                    :          No. 568 WDA 2017
                                        :
                           Appellant    :


                Appeal from the PCRA Order, March 30, 2017,
               in the Court of Common Pleas of Fayette County
               Criminal Division at No. CP-26-CR-0000209-2013


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 28, 2017

      Appellant, Jeffrey R. Ritenour, appeals from the March 30, 2017 order

of the Court of Common Pleas of Fayette County denying his first petition

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

After careful review, we affirm.

      On direct appeal, a previous panel of this court provided the following

recitation of the facts:

            The minor victim and Appellant are distant cousins
            who have known each other for a long time. The
            victim testified that on May 24, 2012, she and
            Appellant went on a walk together. While they were
            walking, Appellant asked the victim to have sex with
            him; and the victim refused. Appellant then pushed
            the victim to the ground, climbed on top of her, and
            removed her shorts. Appellant touched the victim all
            over her body, including her breasts and vaginal
            area, and inserted his penis into the victim’s vagina.
            The victim testified that she and Appellant walked on
J. S63040/17

          the same trail and engaged in nonconsensual sexual
          intercourse on two other occasions, in June and July
          of 2012. Appellant was fifty-one (51) years old at
          the time of the offenses. The victim was fourteen
          (14) years old at the time of the first assault, and
          fifteen (15) years old at the time of the second and
          third assaults.

          The victim told her ex-boyfriend about the assaults.
          The victim’s ex-boyfriend then told the victim’s
          parents, and they contacted the police. At trial, a
          Pennsylvania State Trooper testified that he went to
          [appellant’s] residence as part of the investigation.
          Appellant initially denied the assaults, but he
          eventually confessed to the first assault, which
          occurred on May 24, 2012.         The trooper read
          [appellant] his Miranda[Footnote 2] warnings, and
          [appellant] repeated his verbal confession to the
          trooper. At [appellant’s] request, the trooper wrote
          down [appellant’s] statement, which [appellant]
          signed.

                [Footnote 2] Miranda v. Arizona, 384
                U.S. 436 (1966).

          A jury convicted [appellant] on January 9, 2014, of
          statutory sexual assault, aggravated indecent
          assault, corruption of minors, and simple assault.
          On April 1, 2014, the [trial] court sentenced
          [appellant] to three (3) to ten (10) years’
          imprisonment, and informed [appellant] of his
          lifetime registration requirement under the Sex
          Offender     Registration   and     Notification    Act
          (“SORNA”)[Footnote 3]. Appellant did not file any
          post-sentence motions.      Appellant timely filed a
          notice of appeal on April 11, 2014. That same day,
          the [trial] court ordered [appellant] to file a concise
          statement of errors complained of on appeal
          pursuant to Pa.R.A.P. 1925(b), and [appellant]
          timely complied.

                [Footnote  3]    “[SORNA],  commonly
                referred to as the Adam Walsh Act,
                became effective on December 20, 2012.


                                   -2-
J. S63040/17

                 By its terms, any individual who was
                 then being supervised by the board of
                 probation or parole was subject to its
                 provisions.”       Commonwealth         v.
                 Partee, 86 A.3d 245, 246 (Pa.Super.
                 2014). SORNA replaced Megan’s Law as
                 the statute governing the registration
                 and supervision of sex offenders. SORNA
                 designates a conviction for statutory
                 sexual assault, 18 Pa.C.S.A. § 3122.1(b),
                 as a “Tier III” sexual offense, subjecting
                 a defendant to a lifetime registration
                 requirement.             42      Pa.C.S.A.
                 § 9799.14(d)(3);        42       Pa.C.S.A.
                 § 9799.15(a)(3).

Commonwealth       v.   Ritenour,     No.   581    WDA    2014,    unpublished

memorandum at 1-3 (Pa.Super. filed October 6, 2014).

     The PCRA court provided the following procedural history:

           A [PCRA] hearing was held in this matter on
           February 2, [2017], at which time testimony was
           presented relative to trial counsel’s alleged
           ineffective assistance relative to the following issues:
           (1) Trial counsel’s failure to present [appellant’s] fuel
           records, (2) Trial counsel’s failure to obtain
           [appellant’s] employment records, (3) Trial counsel’s
           failure to call a witness, (4) Trial counsel’s failure to
           obtain a record of the victim’s Facebook account,
           (5) Trial counsel’s failure to obtain photographic
           evidence of [appellant’s] identifying marks, and
           (6) Trial counsel’s failure to provide evidence of a
           hernia scar.

                 [Appellant] was found guilty by a jury of
           Statutory Sexual Assault, Aggravated Indecent
           Assault, Corruption of Minors, and Simple Assault, 18
           Pa.C.S. §§ 3122.1, 3125, 6301, and 2701,
           respectively.   He was sentenced to a term of
           imprisonment of three to ten years on April 1, 2014,
           and his sentence was affirmed by the Pennsylvania



                                     -3-
J. S63040/17

            Superior Court on April 28, 2015.[1]         The trial
            evidence established that [appellant] was fifty-one
            years old at the time of the crimes, having been born
            on July 22, 1961, and the victim, whose date of birth
            is May [], 1997, was fourteen years of age at the
            time of the first occurrence, fifteen when the other
            incidents took place.

PCRA court opinion, 3/30/17 at 1-2.

      Appellant raises the following issues for our review:

            1.    Whether the PCRA court erred in not finding
                  defense counsel, Michael Garofalo, Esq.,
                  ineffective for failing to present [appellant’s]
                  fuel receipts at trial?

            2.    Whether the PCRA court erred in not finding
                  defense counsel, Michael Garofalo, Esq.,
                  ineffective for failing to obtain [appellant’s]
                  employment records?

            3.    Whether the PCRA court erred in not finding
                  defense counsel, Michael Garofalo, Esq.,
                  ineffective for failing to call Rusty Ritenour as a
                  witness?

            4.    Whether the PCRA court erred in not finding
                  defense counsel, Michael Garofalo, Esq.,


1 This court affirmed appellant’s judgment of sentence on October 6, 2014.
Appellant filed a petition for appeal to the Supreme Court of Pennsylvania,
which was denied on March 31, 2015. Commonwealth v. Ritenour, 113
A.3d 279 (Pa. 2015). A petition under the PCRA is timely if it is filed within
one year of the date that the petitioner’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). The PCRA defines the date that a
judgment becomes final as “the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review. Id. at § 9545(b)(3). The Supreme Court of the United States
requires that petitions for a writ of certiorari be filed within 90 days of the
denial of discretionary review by a state court of last resort. Sup.Ct.R. 13.
Therefore, appellant’s PCRA petition is timely filed.


                                      -4-
J. S63040/17

                  ineffective for failing to obtain a record of [the
                  victim’s] Facebook account?

            5.    Whether the PCRA court erred in not finding
                  defense counsel, Michael Garofalo, Esq.,
                  ineffective for failing to provide photographic
                  evidence of [appellant’s] identifying marks?

            6.    Whether the PCRA court erred in not finding
                  defense counsel, Michael Garofalo, Esq.,
                  ineffective for failing to provide evidence of
                  [appellant’s] hernia scar?

Appellant’s brief at 3 (capitalization omitted).

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic, or tactical decision by counsel[.]”         Id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to do so before trial, at trial, . . . on appeal or
            in a prior state postconviction proceeding.”          Id.
            § 9544(b).



                                      -5-
J. S63040/17

            To be entitled to relief on an ineffectiveness claim, a
            PCRA petitioner must establish: (1) the underlying
            claim has arguable merit; (2) no reasonable basis
            existed for counsel’s action or failure to act; and
            (3) he suffered prejudice as a result of counsel’s
            error, with prejudice measured by whether there is a
            reasonable probability that the result of the
            proceeding       would     have      been     different.
            Commonwealth v. Chmiel, 30 A.3d 1111, 1127
            (Pa. 2011) (employing ineffective assistance of
            counsel test from Commonwealth v. Pierce, 527
            A.2d 973, 975-976 (Pa. 1987).[Footnote 5] Counsel
            is presumed to have rendered effective assistance.
            Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
            2010).     Additionally, counsel cannot be deemed
            ineffective for failing to raise a meritless claim.
            Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.
            2006).     Finally, because a PCRA petitioner must
            establish all the Pierce prongs to be entitled to
            relief, we are not required to analyze the elements of
            an ineffectiveness claim in any specific order; thus, if
            a claim fails under any required element, we may
            dismiss the claim on that basis. Ali, 10 A.3d at 291.

                  [Footnote 5] Pierce reiterates the
                  preexisting   three-prong  test   for
                  ineffective assistance of counsel in
                  Pennsylvania and holds it to be
                  consistent    with    the  two-prong
                  performance and prejudice test in
                  Strickland v. Washington, 466 U.S.
                  668 (1984). Pierce, 527 A.2d at 976-
                  977.

Commonwealth v. Treiber, 121 A.3d 435, 444-445 (Pa. 2015).

                                       I.

      Appellant avers that Attorney Garofalo rendered ineffective assistance

of counsel during trial because he failed to introduce appellant’s fuel receipts

and employment records into evidence. Specifically, appellant avers that if



                                     -6-
J. S63040/17

his “fuel receipts and employment records were presented at trial, they

would have supported his defense that he was traveling so often during the

time period of the alleged sexual assaults that there was no way that he had

the time to commit the offenses.” (Appellant’s brief at 9.)

        During trial, appellant testified that on May 24, 2012, he had returned

home after working in Morgantown, Pennsylvania,2 and that upon exiting the

Pennsylvania Turnpike at Donegal between 5:00 and 5:30 p.m., he

purchased fuel at the same time and that he had the receipts at home

establishing this alibi. (Notes of testimony, 1/8/14 at 54-55.) At no point,

however, did appellant furnish any sort of fuel receipt for May 24, 2012 to

either Attorney Garofalo or during collateral review.         During the PCRA

hearing, appellant furnished several receipts documenting his purchases

during the course of his employment from April through July of 2012;

however, appellant failed to produce any receipts from May 24, 2012. (See

notes of testimony, 2/2/17 at 21, 30.) Moreover, Attorney Garofalo testified

that he never received the fuel receipts in question.            (Id. at 42.)

Specifically, Attorney Garofalo testified to receiving only timecards and food

receipts from appellant. (Id.)

        We agree with the PCRA court, which found that Attorney Garofalo was

not ineffective, “for not presenting to the jury any receipts that were not

given to him, nor can [he] be ineffective for failing to present a receipt from


2   Morgantown is approximately 240 miles away from Fayette County.


                                      -7-
J. S63040/17

May 24, 2012, that may not even exist.” (PCRA court opinion, 3/30/17 at

3.) Accordingly, we find that appellant’s first issue lacks arguable merit.

      Likewise, appellant claims that Attorney Garofalo was ineffective for

failing to present appellant’s employment records to the jury. Specifically,

appellant     states   that     “Attorney      Garofalo’s    ineffectiveness     prejudiced

[appellant]    in    that    the    evidence    of     [appellant’s]   fuel   receipts    and

employment records could have convinced the jury that [appellant] had no

time to commit the alleged sexual assaults.” (Appellant’s brief at 9.) The

record, however, demonstrates that Attorney Garofalo examined appellant

extensively     during      trial   regarding    his    employment-related       travel    to

Morgantown.         During the PCRA hearing, Attorney Garofalo testified that

appellant’s timesheet from May 24, 2012, documented that appellant worked

for five and one-half hours in Morgantown. (Notes of testimony, 2/2/17 at

43.) According to Attorney Garofalo’s testimony, however, the timesheet did

not provide any indication as to when the work was specifically performed.

(Id.) Specifically, we note that the timesheet in question did not establish

when appellant was still in Morgantown, and we agree with the PCRA court’s

determination that Attorney Garofalo “had the timesheets and used them in

such a way as to be reasonably calculated to effectuate his client’s best

interests.” (See PCRA court opinion, 3/30/17 at 3.) Therefore, we find that

appellant’s claim that Attorney Garofalo was ineffective for failing to obtain

appellant’s employment records is without arguable merit.



                                            -8-
J. S63040/17

                                      II.

      Appellant next raises the issue of whether Attorney Garofalo was

ineffective for failing to call Rusty Ritenour as a witness. When evaluating

whether counsel was ineffective for failing to call a potential witness, we are

bound by the following standard:

            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;
                  and (4) the absence of the testimony of
                  the witness was so prejudicial as to have
                  denied the defendant a fair trial.

            Commonwealth v. Washington, 592 Pa. 698, 927
            A.2d 586, 599 (2007). To demonstrate Strickland
            prejudice, the PCRA petitioner “must show how the
            uncalled witnesses’ testimony would have been
            beneficial under the circumstances of the case.”
            Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d
            1110, 1134 (2008); see also Commonwealth v.
            Chmiel, 585 Pa. 547, 889 A.2d 501, 546 (2005)
            (“Trial counsel’s failure to call a particular witness
            does not constitute ineffective assistance without
            some showing that the absent witness’s testimony
            would have been beneficial or helpful in establishing
            the asserted defense.”).

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

      Specifically, appellant contends that Ritenour’s testimony as to

conversations that he had with the victim on Facebook Messenger in which

she allegedly admitted to Ritenour “that her claim that she was sexually


                                     -9-
J. S63040/17

assaulted by [appellant] was false.”      (Appellant’s brief at 11; notes of

testimony, 2/2/17 at 7.)    Appellant satisfies the first three prongs of the

Washington test. There is undisputed evidence in the record that Ritenour

existed, was available and willing to testify on appellant’s behalf, and that

Attorney Garofalo knew of Ritenour’s existence.

      Appellant, however, fails to demonstrate the fourth Washington

prong--that the absence of Ritenour’s testimony deprived appellant of a fair

trial. To the contrary, Ritenour’s testimony, if found to have been credible

by the jury, could have been fatal to appellant’s defense at trial. During the

PCRA hearing, Ritenour read the following transcript of a conversation he

had with the victim on Facebook Messenger:

            A.    . . . I said at 4:38 P.M., did Jeff really do what
                  the paper said he did because I honestly do
                  not see him ever doing that. [The victim] at
                  4:39 P.M., the cop changed everything around.
                  Everything I told him he made it sound
                  worser. [sic] Then I said at 4:40 P.M., but I
                  asked did he really do it. I mean he is my
                  uncle, I’ve known him all my life and I don’t
                  see him raping someone.             [The victim],
                  4:41 P.M., not really. I tried to tell the cops
                  that but it’s still rape if you have sex with a
                  minor.

            Q.    Next message?

            A.    [The victim], 4:42 P.M., but did you willingly
                  do it or if so it’s not rape. [The victim],
                  4:43 P.M., kind of.

Notes of testimony, 2/2/17 at 15.




                                    - 10 -
J. S63040/17

      Attorney Garofalo explicitly testified that his decision to not call

Ritenour as a witness was based on the contents of the Facebook Messenger

conversations.

            A.    . . . not to mention the fact that the latter
                  portion of the conversation discusses a
                  consensual encounter, without a specific date,
                  between my client, [appellant] and [the
                  victim]. It was a statutory sexual assault. It’s
                  still illegal. I didn’t want the jury to have
                  something concrete to say yes, there was a
                  sexual encounter.      So I didn’t even try to
                  introduce that in the record as an Exhibit.

            Q.    So that was a decision of strategy.

            A.    Totally. Totally a strategic decision to avoid
                  having the jury have that where it admitted to
                  a consensual encounter.

            Q.    To go a step further, you were aware that half
                  of this conversation was Rusty Ritenour.

            A.    Yes, I was.

            Q.    And can you tell us why you did not call him as
                  a witness?

            A.    Again, the main reason was because the
                  conversation would confirm that there was at
                  least one sexual encounter between [the
                  victim] . . . , and I didn’t want anybody to put
                  a concrete definition to there being any sexual
                  encounter because [appellant] had told me the
                  entire time that there was never any contact.

Notes of testimony, 2/2/17 at 44-45.

      As noted above, trial counsel cannot be determined to have provided

ineffective assistance under the PCRA for failing to call a witness unless the



                                    - 11 -
J. S63040/17

petitioner demonstrates the failure to call the witness resulted in the

petitioner being deprived of his right to a fair trial. See Washington, 927

A.2d at 599. Attorney Garofalo’s testimony establishes that calling Ritenour

as a witness would have the opposite effect--that it would instead introduce

evidence of a consensual sexual encounter between appellant and the

victim--which would not have been beneficial to appellant’s defense given

the nature of the charges against him.

      We, therefore, find that appellant has not met his burden under

Washington in establishing that Attorney Garofalo’s failure to call Ritenour

to testify deprived appellant of a fair trial.   Accordingly, appellant’s third

claim is without arguable merit.

      With respect to appellant’s fourth claim, we likewise agree with the

PCRA court’s finding that Attorney Garofalo’s decision to not introduce a

transcription of the victim’s conversations with Ritenour on Facebook

Messenger into evidence was a sound strategic decision.           (PCRA court

opinion, 3/30/17 at 5.) As noted above, Attorney Garofalo decided against

introducing evidence that would confirm at least one sexual encounter

between appellant and the victim because Attorney Garofalo has a

reasonable basis for this strategic decision. Accordingly, appellant’s fourth

claim must fail.




                                    - 12 -
J. S63040/17

                                       III.

      Finally, appellant avers that Attorney Garofalo was ineffective during

trial because of his failure to produce photographic evidence of a mole in

appellant’s groin area and for his failure to provide any evidence of

appellant’s hernia scar. We agree with the PCRA court’s finding that both of

these claims are without merit.

      We   shall   first   address   Attorney   Garofalo’s   failure   to   present

photographic evidence at trial of appellant’s mole. During trial, appellant’s

wife, Tekla Ritenour, testified for the purposes of attempting to impeach the

victim’s testimony. Specifically, Mrs. Ritenour testified that appellant had a

“hanging mole on the left inner groin that is impossible to have sex in any

position without feeling it any which way, shape or form. . . . Not only that,

you could feel it during intercourse no matter what position she used.”

(Notes of testimony, 1/9/14 at 76.)

      During the PCRA hearing, Attorney Garofalo testified that he was of

the opinion that Mrs. Ritenour’s trial testimony alone was sufficient and that

photographic evidence of appellant’s mole was not required.            Specifically,

Attorney Garofalo testified as follows:

            Q.     So even if you had a photograph of it would
                   you have presented it at trial?

            A.     No, I would have thought that the firsthand
                   testimony of his wife of, and I can’t remember




                                      - 13 -
J. S63040/17

                 how long she said they had been married,[3]
                 but the firsthand testimony of his wife
                 experiencing being able to see or feel the
                 mole, as it’s been called, would have been
                 sufficient without presenting photographic
                 evidence that the Court may never have
                 introduced anyway to the jurors.

Notes of testimony, 2/2/17 at 47.

     In order for a PCRA petitioner to establish that a trial counsel’s chosen

strategy lacked a reasonable basis, it must be concluded that the

“alternative not chosen offered a potential for success substantially greater

than the course actually pursued.” Commonwealth v. Williams, 732 A.2d

1167, 1189 (Pa. 1999), citing Commonwealth v. Brown, 676 A.2d 1178,

1186 (Pa. 1996) (citation omitted).    Here, appellant fails to demonstrate

that introducing a photograph of his mole to the jury offered any potential

for substantially greater success as required by Williams. We agree with

the PCRA court’s finding that Attorney Garofalo “articulated a rational

strategic reason” for not offering a photograph of appellant’s mole into

evidence, and instead choosing to rely on Mrs. Ritenour’s testimony to

discredit the victim’s testimony. The PCRA court’s finding is soundly based

in the record.   Indeed, as noted above, Mrs. Ritenour testified that she

always felt appellant’s mole during sexual intercourse. Accordingly, we find




3Mrs. Ritenour testified that at the time of the trial, she and appellant had
been married for 27 years. (Notes of testimony, 1/9/14 at 76.)


                                    - 14 -
J. S63040/17

Attorney Garofalo’s reliance on Mrs. Ritenour’s testimony to be based in

rational strategic reason, and therefore, appellant’s claim is without merit.

      Finally, we address appellant’s claim that Attorney Garofalo was

ineffective due to his failure to provide any evidence of appellant’s hernia

scar as a means of impeaching the victim’s testimony. This claim is without

merit, as there is no evidence in the record that Attorney Garofalo knew, or

should have known, of the existence of appellant’s hernia scar. Moreover,

appellant testified that he forgot about his hernia scar when he was being

questioned by Attorney Garofalo.     (See notes of testimony, 2/2/17 at 33-

34.) Attorney Garofalo testified that appellant never told him about a hernia

scar, and that Mrs. Ritenour never testified about the existence of a hernia

scar during trial.   (See id. at 45-46.)      Based on the evidence of record,

appellant has failed to establish that Attorney Garofalo knew or should have

known of appellant’s hernia scar. Accordingly, this claim is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/28/2017




                                     - 15 -
