J-S17018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                             Appellee

                        v.

    DANIEL EUGENE CONRAD

                             Appellant                 No. 1906 MDA 2019


             Appeal from the PCRA Order Entered October 15, 2019
               In the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000007-2017


BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                               FILED JULY 23, 2020

        Appellant Daniel Eugene Conrad appeals from the October 15, 2019

order of the Court of Common Pleas of Lebanon County (“PCRA court”), which

denied his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

46. Upon review, we affirm.

        Because of an incident that occurred on September 2, 2016, Appellant

was charged with driving under the influence (DUI) of a Schedule II or III

controlled substance (methamphetamine), DUI—controlled substance, and

driving while operating privilege is suspended or revoked.1              The case

proceeded to a jury trial, at which only the Commonwealth offered testimony.

First, the Commonwealth called to the stand Trooper Morgan Bright,

Pennsylvania State Police.        Trooper Bright testified that, on September 2,

____________________________________________


1   75 Pa.C.S.A. §§ 3802(d)(1)(ii), (d)(2), and 1543(a), respectively.
J-S17018-20



2016, he was assigned to patrol duty when he responded to a dispatch at

11:40 p.m. of someone being followed. N.T. Trial, 4/18/18, at 7-8. Trooper

Bright testified that he responded to 6 South Lancaster Street in Jonestown

Borough, Lebanon County, which was in his jurisdiction.       Id. at 8.   Upon

arrival, Trooper Bright observed Appellant standing alone outside a legally

parked black Chevrolet S-10 pickup truck. Id. According to Trooper Bright,

no one else was around Appellant. Id. He recalled that the parking space the

truck occupied was right off a public road and could only be accessed by

travelling on a public road. Id. at 8-9. Trooper Bright testified that he had

passed the spot where the truck was parked approximately five to ten minutes

prior to responding to the dispatch. Id. at 17. At that time, Trooper Bright

did not observe the pickup truck in the parking spot. Id.

      Trooper Bright testified that he spoke with Appellant who related that,

all night, he was being followed by “unknown individuals” “from Hazelton all

the way down here to Jonestown.” Id. at 9. Appellant did not provide any

specifics on or description of the individuals. Id. According to Trooper Bright,

Appellant remarked that the ordeal had been on the news and he “had been

ducking and dodging” the individuals.      Id.   Trooper Bright recalled that

Appellant was “fidgety and nervous” and his speech was “paranoid and

repetitive.” Id. Trooper Bright testified that, based upon his training and

experience, he recognized Appellant’s mannerisms to be consistent with

methamphetamine use.        Id. at 10.     He explained that paranoia and

hallucinations are indicators of methamphetamine use. Id. at 16.

                                     -2-
J-S17018-20



       Trooper Bright then asked Appellant whether he had used drugs,

Appellant responded in the negative. Id. at 10. Thereafter, Trooper Bright

performed a field sobriety test on Appellant.     Trooper Bright conducted a

“check of his eyes looking for different indicator of impairment, as well as the

Modified Rhomberg Balance Test, the results of which were consistent with

drug impairment. Id. at 11-14. Trooper Bright explained: “The count was

off.   He had a fast count, which was consistent with a stimulant such as

methamphetamine. I observed body tremors, eyelid tremors also consistent.”

Id. at 14. Trooper Bright recalled that Appellant refused to perform further

testing on account of an alleged foot injury. Id. at 14-15. Trooper Bright

testified that he then asked Appellant again whether he had taken any drugs.

Id. at 15. According to Trooper Bright’s testimony, Appellant remarked that

“he did one bump of meth around 10 p.m.” Id. Trooper Bright explained a

bump of meth as “basically like a single use. Sometimes, they will put it on

their hand, snort it off an object.” Id.

       Trooper Bright testified that he asked Appellant several times whether

he had driven the pickup truck. Id. at 16. Each time, according to Trooper

Bright, Appellant answered in the affirmative. Id. Appellant also admitted to

driving the truck prior to calling the police. Id. Trooper Bright explained that

the reason he asked Appellant multiple times whether he was driving the truck

was to “verify that he was actually in full control of that vehicle within a

reasonable close amount of time since I did not observe him driving the vehicle

at any point.”   Id. at 16-17. Appellant had no companions with him that

                                      -3-
J-S17018-20



night—he was alone. Id. at 22. Trooper Bright recalled removing a set of

keys from Appellant, but was uncertain if a vehicle key was on the key ring.

Id. at 22-23. The Commonwealth played for the jury a video of the traffic

stop in question that seemingly confirmed Trooper Bright’s account of the

incident. Id. at 18-20.

      The Commonwealth next offered the testimony of Trooper James

Paparella. Trooper Paparella testified that, on September 2, 2016, he was on

patrol duty with Trooper Bright when they received and responded to the

dispatch at 6 South Lancaster Street in Jonestown. Id. at 31. He testified

that he did not recall the pickup truck being in the area when he and Trooper

Bright had driven through it approximately 10 minutes prior to responding to

the dispatch.    Id. at 32.      Trooper Paparella recalled that when they

encountered Appellant, he appeared “extremely nervous,” “repetitive,” and

“seemed to be paranoid with what he was speaking about.” Id. at 33. Trooper

Paparella testified that he heard Appellant’s admission to methamphetamine

use and noticed nobody else with or around Appellant. Id. Trooper Paparella

recalled that Appellant “said that he had spoken to different officers and that

there was helicopters involved.      It was on the news, that we should have

known about it. But there was no reports that we found that were legitimate.”

Id. at 34.

      Trooper Paparella testified that he ran the pickup truck’s plate and the

truck came back registered to Appellant.        Id.   At the trial, the parties

stipulated to the following facts:

                                       -4-
J-S17018-20


        On September 2, 2016, at approximately 11:50 p.m., [Appellant]
        was placed under arrest for DUI by [Trooper Bright]. [Appellant]
        consented to legal blood draw. [Appellant] was transported to the
        Good Samaritan Hospital for blood testing. The blood was drawn
        at 12:34 a.m. on September 3, 2016, by McKenzie Schneck, a
        phlebotomist at the hospital.          [Appellant’s] blood was
        subsequently submitted to the MedTox Laboratories for analysis.
        MedTox Laboratories is an approved testing facility for detecting
        the presence of controlled substance pursuant to 46 Pa. Bulletin
        76. [Appellant’s] w-blood sample was analyzed and certified by
        Karla J. Walker, Director with MedTox Laboratories at 3:51 p.m.
        on September 13, 2016. Dr. Walker has been appropriately
        educated and trained to conduct such work. Her education and
        training has been memorialized in her Curriculum Vitae[.] And
        Dr. Walker’s testing revealed the presence of methamphetamine,
        a Schedule II controlled substance in amount of 42 nanograms
        per milliliter and amphetamine, Schedule II controlled substance,
        a metabolite of methamphetamine in the amount of 11 nanograms
        per milliliter, in [Appellant’s] blood. . . . And at all times,
        [Appellant’s] blood sample was appropriately maintained and
        preserved for chain of custody purposes.

Id. at 36-37. The jury found Appellant guilty of DUI of a Schedule II or III

controlled substance (methamphetamine) and driving while operating

privilege was suspended or revoked, a summary offense. The jury, however,

acquitted Appellant of DUI—controlled substance. On June 6, 2018, the trial

court sentenced Appellant to, inter alia, two to five years’ imprisonment for

DUI.2     Appellant filed post-sentence motions, which the court denied on

October 10, 2018. Appellant did not file a direct appeal.

        On April 22, 2019, Appellant pro se filed the instant PCRA petition, his

first, alleging several ineffective assistance of counsel claims. The PCRA court

appointed counsel who filed an amended PCRA petition on May 23, 2019.

Following evidentiary hearings, the PCRA court, on October 15, 2019, denied

Appellant’s petition for collateral relief. Appellant appealed. The PCRA court

____________________________________________


2   The court imposed only a fine of $200.00 for the summary offense.

                                           -5-
J-S17018-20



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

of on appeal. Appellant complied, raising five assertions of error. In response,

the PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant

is not entitled to relief.

       On appeal,3 Appellant presents five issues for our review.

       [I.] Whether Appellant was denied his constitutionally guaranteed
       right to effective representation when trial counsel failed to
       adequately defend Appellant by failing to argue a defense to the
       charges and failing to properly cross-examine witnesses?
       [II.] Whether Appellant was denied his constitutionally guaranteed
       right to effective representation when trial counsel failed to
       subpoena Ms. Simcott to testify at trial that Appellant was not in
       control of the key to the vehicle and therefore was not in control
       of the vehicle. [Trial court] also failed to call additional witnesses?

       [III.] Whether Appellant was denied his constitutionally
       guaranteed right to effective representation when trial counsel
       failed to request the complete jury trial transcript and therefore
       was unable to appeal the issue of inadequate jury instructions as
       it related to the elements of DUI?

       [IV.] Whether Appellant was denied his constitutionally
       guaranteed right to effective representation when trial counsel
       failed to allow Appellant to testify?

       [V.] Whether Appellant was denied his constitutionally guaranteed
       right to effective representation when trial counsel failed to object
       to the following comments made by the Commonwealth at trial:
       “Defendant didn’t take the stand,” and “Defendant was handcuffed
       and placed into the back of the vehicle”?

Appellant Brief at 4-5.




____________________________________________


3“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

                                           -6-
J-S17018-20



       As stated, Appellant’s claims before us involve ineffective assistance of

counsel. A PCRA petitioner is entitled to relief if he pleads and proves that

prior counsel rendered ineffective assistance of counsel.         42 Pa.C.S.A. §

9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner

must plead and prove by a preponderance of the evidence that (1) the

underlying legal claim has arguable merit; (2) counsel had no reasonable basis

for acting or failing to act; and (3) the petitioner suffered resulting prejudice.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015)

(en banc). “A petitioner must prove all three factors of the “Pierce[4] test,”

or the claim fails.” Id. Put differently, “[t]he burden of proving ineffectiveness

rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa.

2005).

       Instantly, after careful review of the record, and the relevant case law,

we conclude that the PCRA court accurately and thoroughly addressed the

merits of Appellant’s issues. See PCRA Court Opinion, 1/2/20, at 8-16. The

PCRA court determined that Appellant’s first issue, whether trial counsel

adequately defended him with respect to the Commonwealth’s argument that

Appellant had driven the pickup truck prior to the troopers’ arrival, lacked

merit. Id. at 10-11. The court reasoned that counsel not only cross-examined

the troopers about whether Appellant possessed the keys to the truck on the

night in question, but also argued to the jury that insufficient evidence existed

____________________________________________


4   Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).


                                           -7-
J-S17018-20



to conclude that Appellant was operating the truck. Additionally, trial counsel

credibly testified at the PCRA hearing that Appellant admitted to her that he

had been driving the truck. Id. The PCRA court also found Appellant’s second

issue to lack merit. Id. at 11-13. Appellant alleged that trial counsel was

ineffective in failing to subpoena Melissa Simcott to establish that she, not

him, had driven the truck on the night at issue. The PCRA court found that

Appellant never mentioned Ms. Simcott’s name to trial counsel or law

enforcement at any point prior to or at the time of trial. Additionally, the court

determined that, despite multiple opportunities over a period of three months,

Appellant was either unable or unwilling to call Ms. Simcott to testify at the

PCRA hearing to offer the alleged exculpatory evidence. Id. at 12-13.

      With respect to Appellant’s third issue, relating to jury instructions, the

PCRA court concluded that it too lacked merit. The court explained that the

jury was instructed properly on the DUI charge.        Id. at 13-14.    Similarly,

Appellant also does not obtain relief on his fourth issue. Appellant argues that

his trial counsel prevented him from testifying at trial. The PCRA court found

Appellant’s allegations to be self-serving and incredible. In crediting counsel’s

testimony, the PCRA court concluded that Appellant, on his own volition,

decided to remain silent during trial. Id. at 14. The court found that trial

counsel did not coerce Appellant into reaching this decision. Furthermore, the

PCRA court also found that Appellant had admitted to counsel throughout the

proceedings that he drove the pickup truck. Finally, the PCRA court concluded

that Appellant’s fifth issue also lacked merit.      Appellant argues that the

                                      -8-
J-S17018-20



Commonwealth stated to the jury during closing argument that Appellant

“didn’t take the stand.” The PCRA court found this argument to be incredible

and inconsistent with the record.        The court found that the transcript

“establishes beyond any doubt that the prosecutor never mentioned or sought

to take advantage of [Appellant’s] failure to testify at trial.” Id. at 16.

      In sum, we conclude that Appellant’s ineffective assistance of counsel

claims lack merit. Accordingly, we affirm the PCRA court’s October 15, 2019

order denying Appellant PCRA relief. We further direct that a copy of the PCRA

court’s January 2, 2020 Rule 1925(a) opinion be attached to any future filings

in this case.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/23/2020




                                      -9-
                                                           Circulated 06/26/2020 11 :54 AM
                                                   ')




           IN THE COURT OF COMMON PLEAS LEBANON COUNTY
                            PENNSYLVANIA

                            CRIMINAL DIVISION


COMMONWEAL TH OF
PENNSYLVANIA

      v.
                                                                0
DANIEL CONRAD                                                   U1




APPEARANCES

Benjamin Baker, Esquire               For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE

Melissa Montgomery, Esquire           For Daniel Conrad



OPINION BY CHARLES, J., January 2, 2020


      After being convicted of Driving Under the Influence of a Controlled

Substance, the DEFENDANT has filed a Post-Conviction Relief Act (PCRA)

Petition seeking to re-write history. The DEFENDANT now claims that his

trial counsel should have proven that he was not operating a motor vehicle

on October 6, 2016. He makes this bold claim ...

-   Despite the fact that police located the DEFENDANT - and no one else

    - directly next to his Chevy S-10 pick-up truck;




                                      1
     -   Despite the fact that the pick-up truck was located in a parking space

         that was vacant five (5) to ten (10) minutes prior to arrival by police;

 -       Despite the fact that the DEFENDANT told police officers that he had

         been driving the pick-up truck and had been followed "all night from

         Hazelton down here to Jonestown"; and

         Despite the fact that he told his own lawyer on multiple occasions that

         he had been driving the pick-up truck.

 For reasons that we will articulate in more detail within the body of this

 Opinion, we categorically reject the DEFENDANT's recent and self-serving

 proclamations that someone else was operating the vehicle.



I.         FACTS

           On October 6, 2016, Daniel Conrad (hereafter DEFENDANT) was

charged with one (1) count of Driving Under the Influence (DUI) of a

Schedule II or II Controlled Substance, one (1) count of DUI of a Controlled

Substance - Incapable of Safe Driving, and one (1) count of Driving While

Operating Privileges are suspended or Revoked. These charges related

to an incident that occurred on September 2, 2016, when Trooper Morgan

Brig ht     (hereafter BRIG HT)     and   Trooper James     Papa rel la (he re after

PAPARELLA) responded to a dispatch of someone being followed at

around 11 :40pm, at 6 South Lancaster Street in Jonestown Borough,

Lebanon County, Pennsylvania. (N.T. 7-8)             DEFENDANT was standing

outside of a black Chevy S-10 pickup truck. The truck was legally parked

in a parking stall facing in towards the curb. (N.T. 8).        The parking spot


                                           2
was within. a Jonestown Borough open parking lot accessible only by

traveling on a roadway in Pennsylvania. (N. T. 9).               That parking spot was

vacant 10-15 minutes before the dispatch. (N.T. 17).

        BRIGHT spoke to DEFENDANT.                DEFENDANT related to BRIGHT

that he was being followed by unknown individuals "all night from Hazelton

all the way down here to Jonestown." BRIGHT indicated that DEFENDANT

"mentioned that it had been on the news, and that he had been ducking

and dodging them around the Borough all night." (N.T. 9).

        Based on BRIGHT's training and experience, BRIGHT assessed that

DEFENDANT presented actions that are consistent with methamphetamine

drug    use.       These actions      included    paranoia and      repetitive speech,

fidgeting movements and nervous activity. BRIGHT asked DE FEN DANT if

he     had   used    drugs   and   DEFENDANT         initially   said   no.   (N.T.   10).

DEFENDANT was unaware of the time of day, believing it was actually two

and    one-half hours earlier than the            actual time of nearly midnight.

DEFENDANT related that he was tired from driving all day. (N.T. 10-11).

BRIGHT again asked DEFENDANT if he had use methamphetamine.

DEFENDANT again denied use.

        BRIGHT performed field sobriety tests on DEFENDANT.                     BRIGHT

conducted      a    "check   of his    eyes   looking   for different     indicators of

impairment, as well as the modified Romberg Balance Test." (N.T. 11).

BRIGHT observed that DEFENDANT displayed symptoms showing "some

ind icat ion of impairment" to be consistent with methampheta mine use.




                                              3
(N.T.     14).      BRIGHT     asked      to   conduct   other field          sobriety   tests.

DEFENDANT demurred and "implied that he had a medical condition with

his feet that wou Id i mpai r-i mpede his ab i I ity to conduct the tests." ( N. T.

14-15).

        BRIGHT         again      asked        DEFENDANT        if       he      had     used

methamphetamine.          DEFENDANT told BRIGHT he had "used it earlier in

the day. He did one bump of meth around 10p.m." (N.T. 15). PAPARELLA

observed         DEF EN DAN T's    mannerisms to         be nervous,          repetitive and

paranoid. (N.T. 33).           PAPARELLA heard DEFENDANT admit to using

methamphetamine. (N.T. 33).

        BRIGHT asked DEFENDANT several times if he drove the black

Chevy S-10 pickup truck.          DEFENDANT told BRIGHT that he was driving

just prior to calling the Pennsylvania State Police to report being followed.

BRIGHT       indicated    that    paranoia      and   hal I ucinations    are      consistent

indicators of methamphetamine use. BRIG HT asked many times to verify

that    DEFENDANT "was actually in                 control of that vehicle within a

reasonable close amount of time since I [BRIGHT] did not actually observe

him driving the vehicle at any point." (N.T. 16-17).

        BRIGHT and PAPARELLA had driven through the area where the

vehicle was 5 to 1 O minutes prior to receiving the dispatch call involving

DEFENDANT. BRIGHT and PAPARELLA did not see the pickup at that

time. (N.T. 17, 22, 32). At the time of dispatch, no companions were with

DEFENDANT. (N.T. 22, 33) DEFENDANT's keys and wallet were removed




                                               4
from DEFENDANT. BRIGHT did not confirm that there was a vehicle key

in the set of keys. (N.T. 23) BRIGHT did not observe drug paraphernalia

in plain view of the vehicle. There was no indication that drugs were used

recently inside the vehicle. (N. T. 22-23).

      DEFENDANT consented to a legal blood draw, which was conducted

at 12:34a.m. on September 3, 2016 at the Good Samaritan Hospital,

Lebanon, Pennsylvania. (N. T. 36).        D EFE NDANT's whole-blood sample

analysis revealed the presence of methamphetamine and amphetamine.

(N.T. 36-37).



II.   PROCEDURAL HISTORY

      On April 18, 2018, the DEFENDANT was tried and found guilty by a

Lebanon County jury on charges of Driving Under the Influence of a

Controlled Substance.    He was found guilty by this Court of Driving While

Operating Privileges Were Suspended or Revoked.        On June 6, 2018, the

DEFENDANT was sentenced to serve two (2) to five (5) years in a State

Correctional facility.   Shortly thereafter, the DEFENDANT filed Post-

Sentence Motions. This Court denied those Post-Sentence Motions via an

Opinion dated October 10, 2018.

      On April 22, 2019, the DEFENDANT filed a prose PCRA Petition. We

appointed Attorney Melissa Montgomery to represent the DEFENDANT

regarding his PCRA. An initial hearing was conducted on July 8, 2019. As

is the custom of this Court, and before any testimony was presented, we




                                      5
solicited a statement from the DEF EN DA NT's attorney about the issues that

were being pursued. The following issues were identified:

      (1) That tria I cou nse I was ineffective for failing to present evidence

         that would have proven that the DEFENDANT was not driving;

     (2) That defense counsel was ineffective for failing to call Melissa

         Simcott as a witness. According to the DEFENDANT, Ms. Simcott

        would have acknowledged that she was driving the vehicle.

     (3) That defense counsel failed to object to the Court's instruction

        that omitted control of the movement of a vehicle as an element of

        the DUI offense.

     (4) That trial counsel prevented the DEFENDANT from testifying. And

     (5) That trial counsel failed to object when the prosecutor argued

        during summation that the DEFENDANT should be convicted

        because he chose not to testify.



     After we began to hear testimony, it became quickly apparent that

both sides should have subpoenaed witnesses who had material information

regarding the issues outlined above.      To enable the parties to subpoena

the needed witnesses, we suspended testi many and re-scheduled the

conclusion of the PCRA hearing for October 10, 2019.

     On October 10, 2019, DEFENDANT's trial counsel, Elizabeth Judd,

provided testimony.    However, the DEFENDANT could not or would not

present testimony from his proposed witness, Melissa Simcott.




                                      6
      At the conclusion of testimony, we issued a Court Order dated

October 15,      2019 to deny the         DEFENDANT's      PCRA Petition.         The

DEF EN DANT filed an Appeal. We solicited a Concise Statement of Errors

from the DEFENDANT's counsel. One was provided on December 5, 2019.

The DEFENDANT's Rule 1925 issues were similar, but not identical to the

ones he raised prior to commencement of the PCRA proceeding. The issues

the DEFENDANT identified in his PCRA Petition were as follows:

      (1) That defense counsel was ineffective for failing to establish that

         the DEFENDANT was not operating a motor vehicle on October 6,

         2016.

      (2) That trial counsel was ineffective for failing to subpoena Melissa

         Simcott.

      (3) That trial counsel was ineffective for not requesting a transcript of

         the jury instructions provided by the Court.

      (4) That    trial   counsel   was    ineffective   for   "not   allowing"   the

         DEFENDANT to testify, and

      (5) That trial counsel was ineffective for filing to object to the

         prosecutor's summation.



      Although we are loathe to request our already over-burdened court

reporters to prepare add itio na I transcripts, we nevertheless so Ii cited a

transcript of the portion of the Prosecutor's summation and our jury

instructions that addressed the elements of the DU I offense. That transcript




                                          7
has been prepared and is now part of the record in this case.          It clearly

shows that this Court did tell the jury that control over the movement of a

motor vehicle is an element to any DUI offense.

       We will address all of the DEFENDANT's PCRA issues within the body

of this Opinion.




Ill.   LEGAL PRINCIPLES GOVERNING PCRA PETITIONS

       The PCRA provides for an            action   by which   innocent persons

convicted of crimes that they did not commit and persons serving illegal

sentences can obtain relief. 42 Pa.C.S. § 9542. The PCRA is the exclusive

method    by which collateral    relief may be obtained in Pennsylvania.

Commonwealth v. Chester, 733 A.2d 1242, 1250 (Pa. 1999).                 To be

eligible for relief under the PCRA, a defendant must prove the following

elements by a preponderance of the evidence:          (1) He must prove that he

has been convicted of a crime under the laws of this Commonwealth and

that he is serving a sentence of imprisonment, probation or parole for a

crime; (2) he must prove that the conviction resulted from one of the

enumerated errors listed in § 9543(a)(2); and (3) he must prove that the

allegation of error has not been previously litigated or waived.     Finally, he

must prove that the failure to litigate the issue prior to or during trial could

not have been the result of any rational, strategic or tactical decision by

counsel. 42 Pa.C.S. § 9543(a).




                                       8
      Trial counsel will always be presumed effective, and the Defendant

bears the burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d

497, 500 (Pa.Super. 1988) (citing Commonwealth v. Williams, 570 A.2d

75, 81 (Pa. 1990)).   In determining whether counsel rendered ineffective

assistance, the court must first determine whether the issue underlying the

claim of ineffectiveness is of arguable merit. Commonwealth v. DiNicola,

751 A.2d 197, 198 (Pa.Super. 2000) (citing Commonwealth v. Johnson,

588 A.2d 1303, 1305 (Pa. 1991 )).     If the claim is without arguable merit,

the Court's inquiry ends, because counsel cannot be deemed ineffective for

failing to pursue a meritless issue. DiNicola, 751 A.2d at 198.

      If a defendant's underlying claim is of arguable merit, we must

examine the action chosen by trial counsel in order to ascertain if that

action was designed to effectuate the Defendant's interest.      Id.   The fact

that trial counsel's strategy may not ultimately have led to an acquittal does

not render the strategy legally deficient.   Commonwealth v. Spotz, 896

A.2d 1191, 1235 (Pa. 2006).     The Defendant must establish that but for

counsel's deficient performance, the result of his trial would likely have

been different. DiNicola, 751 A.2d at 198.




                                      9
IV.      ANALYSIS

      A.Proof that the DEFENDANT was Driving

        The DEFENDANT now claims that his trial counsel was ineffective for

failing to question the investigating police officer about the location of the

DEFEN DAN T's keys, the location where the DEF EN DANT was standing

and the fact that the officer failed to feel the hood of the DEFENDANT's

vehicle in order to ascertain if it was warm. The purpose of such testimony

was to ostensibly establish that the DEFENDANT had not operated the

pick-up truck prior to arrival of police.

       A review of the trial transcript reveals that Attorney Judd did in fact

question the investigating officers about the location of the DEFENDANT's

keys and the fact that the officers did not observe the DEFENDANT driving

the vehicle.    Trial counsel did in fact argue to the jury that there was

insufficient proof that the DEFENDANT had been operating a vehicle.

More important. Attorney Judd provided credible testimony at the time of

the PCRA Hearing that her client admitted to her that he had been driving

the. vehicle. While it is true that Attorney Judd did not solicit information

about whether the police felt the hood of the pick-up truck, given the

totality of all of the rest of the information presented, and given that

Attorney Judd would have had no way of knowing whether the police did

in fact detect warmth from the hood of the DEFENDANT's vehicle, we

cannot and will not equate Attorney Judd's failure to ask that one question

with ineffectiveness.




                                       10
     In point of fact, there was overwhelming evidence that DEFENDANT

operated the pick-up truck.       State   Police testified that on multiple

occasions and in multiple ways, the DEFENDANT himself admitted that he

had been operating the vehicle.    In fact, he made a bizarre claim that he

had been involved in a lengthy chase that began in Hazelton and ended in

Jonestown where police encountered him and his vehicle.

     Looking at the totality of the record before us, we cannot and will not

declare Attorney Judd to be ineffective for failing to rebut what was likely

unassailable - that the DEFENDANT had operated the pick-up truck prior

to his encounter with police.



   B.Testimony of Melissa Simcott

     The DEFENDANT claims that trial counsel should have subpoenaed

Melissa Simcott. He claims that Ms. Simcott would acknowledge that she

was driving the vehicle and he was not.      In July at the time of the first

PCRA Hearing, we advised the DEFENDANT that he would have to procure

Ms. Simcott's testimony in support of his bald allegations.     We afforded

the DEFENDANT with three (3) months to do so. Even in that time period,

the DEFENDANT was unable or unwilling to procure testimony from

Melissa Simcott to corroborate his self-serving claim that she was driving

the pick-up truck.

     It is common for convicted defendants to file PRA claims based upon

the premise that their lawyer should have but did not subpoena testimony




                                     11
from witnesses.     The legal principles governing such situations are very

well established.     A defense attorney's failure to call certain witnesses

does     not   constitute   per   se     ineffectiveness.   Commonwealth     v.

Washington, 592 Pa. 698, 927 A.2d 586, 599 (2007). In establishing

whether defense counsel was ineffective for failing to call witnesses, a

defendant must demonstrate that 1) the witnesses existed and were

available; 2) counsel was aware of the existence of the witnesses, or

should have known of their existence and availability; 3) the proposed

witnesses were ready, wi 11 i ng and, able to testify on behalf of the

defendant; and 4) the absence of the proposed testimony prejudiced him.

Commonwealth v.        Hall, 549       Pa. 269, 290-92, 701    A.2d   190, 201

(Pa.1997).

       In this case, the record is devoid of any evidence - other than the

incredible and self-serving claims of the DEFENDANT himself - that

Melissa Simcott was driving the pi ck-up truck on October 16, 2016.

Melissa Simcott was not located in the vicinity of the pick-up truck when

police arrived.   The DEFENDANT did not tell police that the vehicle had

been operated by Melissa Simcott.         The DEFENDANT never told his own

lawyer that Melissa Simcott was the driver. Despite being given three (3)

months to pro cu re Ms. S imcott's purportedly exculpatory testimony, the

DEFENDANT was either unwilling or unable to procure testimony or

evidence that she was in fact the driver of the pick-up truck.    Under such




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circumstances, the DEFENDANT's claim that trial counsel was ineffective

for failing to subpoena Melissa Simcott must fail.



   C. Transcript of Jury Instructions

     Nowhere is the DEFENDANT's desperation better exemplified than it

is with respect to his argument about the Court's jury instructions. Without

anything other than his own misguided hopes, the DEFENDANT argues

that this Court failed to instruct the jury that physical control of the

movement of a motor vehicle was an element of the DU I offense. Neither

the prosecutor nor the DEFENDANT's attorney recalled the type of glaring

omission that the DEFENDANT described.             In addition, this jurist has

conducted hundreds of DUI trials during his twenty (20) years on the

bench.   Never have we failed to instruct a jury about the "physical control

of the movement of a vehicle" element.

     This Court is very reluctant to overburden Lebanon County's already

overworked court reporters by requiring them to prepare a transcript simply

because a defendant makes a claim that we know is not accurate.

Nevertheless, so that this does not devolve into a battle of memories, we

did procure a transcript of the portion of our jury instruction that addressed

the e le men ts of DU I. Th at transcript is now pa rt of the record.   It clearly

reveals that this Court properly instructed the jury that physical control of

the movement of a motor vehicle is an element of the DUI offense.




                                        13
Accordingly, the DEFENDANT's PCRA claim regarding the jury instruction

of this Court must be denied.



     D. Testimony of the DEFENDANT

      The     DEFENDANT       claims that       his   lawyer   prevented   him   from

testifying.    Presumably, the DEFENDANT wanted to tel I the jury that he

was not the driver of the pick-up on October 16, 2016.               We reject the

DEFENDANT's argument for multiple reasons.

      Trial counsel Elizabeth Judd presented credible testimony that she

and the DEFENDANT discussed the question of whether or not to testify.

Attorney Judd stated that the DEFENDANT made the decision not to testify

and that she never coerced him into making this decision. We find Attorney

Judd's testimony to be credible. We conclude as a finding of fact that the

DEFENDANT himself chose not to testify and that choice was not forced

upon him by Attorney Judd.

      Although the above finding disposes of the DEFENDANT's argument,

we    also    need   to   point   out   that   throughout the     proceedings,    the

DEFENDANT admitted to Attorney Judd that he drove the pick-up truck.

As a lawyer, Attorney Judd has a duty not to suborn perjury or present

testimony she knows to be false. To the extent that the DEFENDANT now

believes he should have been called as a witness to deny driving, such

testimony would have been inconsistent with information the DEFENDANT

provided privately to Attorney Judd.             Th is inconsistency would have




                                           14
created a dilemma in open Court for Attorney Judd as soon as she realized

the DEFENDANT was lying to the jury.         This is a secondary reason why

Attorney Judd cannot be deemed            ineffective for failing to call the

DEFENDANT as a witness.



     E. Prosecution's Closing Arguments

       The DEFENDANT's last issue is again dependent upon his faulty and

self-serving memory of what occurred at trial.      DEF EN DANT argues th at

the prosecutor improperly commented upon his failure to take the witness

stand. The Court does not remember such an argument. Neither did the

DEFENDANT's trial counsel.       Once again, we have asked one of our

overburdened court reporters to take the time to unnecessarily transcribe

the prosecutor's closing argument. That transcription is part of the record.

As with the closing instruction, the transcript establishes beyond any doubt

that the prosecutor never mentioned or sought to take advantage of the

DEFENDANT's failure to testify at trial. Once again, this argument by the

DEFENDANT is nothing more than a red herring. It provides no ground for

relief under the PCRA.



V.     CONCLUSION

       There is absolutely not validity to any of the DEFENDANT's PCRA

arguments.      It is indeed unfortunate that the DEFENDANT's bogus

arguments forced the taxpayers of this community to pay for a lawyer to




                                     15
represent the DEFENDANT, a prosecutor to investigate and rebut the

DEFENDANT's      arguments    and   court   reporters   who   were    forced   to

unnecessarily prepare transcriptions to prove what everyone involved in

this case already knew - that this DEFENDANT is so desperate that he

will stop at nothing, including fabrication of claims, to avoid responsibility

tor his own conduct.

     We will now give this case to the Pennsylvania Superior Court with

our recommendation      that the    DE FEN DANT's arguments      be    rejected

completely.




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