J-S29006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FREDERICK WALTER

                            Appellant                   No. 919 WDA 2014


                     Appeal from the Order April 24, 2014
               In the Court of Common Pleas of Venango County
              Criminal Division at No(s): CP-61-CR-0001011-2003


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                                 FILED JULY 14, 2015

        Appellant, Frederick Walter, appeals from the order denying his

petition pursuant to the Post Conviction Relief Act (“PCRA”).          On appeal,

Walter argues that the PCRA court erred in concluding that trial counsel was

not ineffective for failing to object to statements made by the prosecutor at

sentencing and for failing to request a mistrial based upon the cumulative

effect of multiple alleged discovery violations.       After careful review, we

affirm.

        After his first trial ended in mistrial due to jury deadlock, a second jury

convicted Walter of involuntary deviate sexual intercourse, aggravated

indecent assault, criminal attempt to commit aggravated indecent assault,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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corruption of minors, and two counts of indecent assault. On July 23, 2007,

the trial court sentenced Walter to an aggregate term of imprisonment of 11

1/2 years to 24 years.1 Walter subsequently filed a pro se PCRA petition.

       The PCRA court appointed counsel to represent Walter, and counsel

filed an amended PCRA petition.            The PCRA court held a hearing on the

amended petition, and on April 24, 2014, entered an order dismissing it.

This timely appeal followed.

       On appeal, Walter presents two challenges to the PCRA court’s

decision.      In both arguments, Walter claims that trial counsel was

ineffective.

       Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled.        We must examine whether the record

supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.       See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).                Our

scope of review is limited by the parameters of the PCRA.                  See

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).

____________________________________________


1
  The original sentence contained a mathematical error in calculating the
aggregate sentence. On September 18, 2007, this error was formally
corrected through an amended sentencing order.



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      To be eligible for relief under the PCRA, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one of the errors listed in 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).

See Commonwealth v. Albrecht, 720 A.2d 693, 698 (Pa. 1998). Under

section 9543(a)(2)(ii), a claim of ineffective assistance of counsel is

cognizable if it implicates the adjudication of guilt.

      In addressing Walter’s claim of counsel’s ineffectiveness, we turn to

the following principles of law:

      In order for Appellant to prevail on a claim of ineffective
      assistance of counsel, he must show, by a preponderance of the
      evidence, ineffective 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. Appellant must demonstrate:
      (1) the underlying claim is of arguable merit; (2) that counsel
      had no reasonable strategic basis for his or her action or
      inaction; and (3) but for the errors and omissions of counsel,
      there is a reasonable probability that the outcome of the
      proceedings would have been different.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(internal citations omitted).    Moreover, “[w]e presume counsel is effective

and    place   upon     Appellant    the     burden      of   proving   otherwise.”

Commonwealth v. Springer, 961 A.2d 1262, 1267-1268 (Pa. Super.

2008) (citations omitted)..     This Court will grant relief only if an appellant

satisfies each of the three prongs necessary to prove counsel ineffective.

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007). Thus,




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we may deny an ineffectiveness claim if “the evidence fails to meet a single

one of these prongs.” Id., at 321 (citation omitted).

      In his first challenge, Walter contends that trial counsel was ineffective

for failing to object to statements made by the prosecutor at sentencing.

Specifically,   Walter   highlights   the   prosecutor’s   assertion   that   Walter

threatened the minor victim that he would harm her mother if she told

anyone about the abuse he perpetrated against her. Walter contends that

this assertion is unsupported by any evidence of record.

      We need not reach the substance of this argument, as we agree with

the PCRA court that Walter has failed to establish that he was prejudiced by

any such failure on trial counsel’s part. The sentence imposed by the trial

court consisted of standard range sentences and mandatory minimums. In

imposing this sentence, the trial court stated

      Alright, Mr. Walter, the theme of the sentencing here is going to
      be standard range sentences. The sentences are going to be
      driven by the guidelines. I don’t view your behavior as much
      different from what the law contemplates when the guidelines
      were established. I’m sentencing to the findings of the jury and
      again, as I’ve just stated, the sentences are all in the standard
      range of the guidelines.

      …

      Accepting the jury’s findings as fact in this case you’ve done
      incredible damage and the damage has essentially ripped your
      family.

N.T., Sentencing, 7/13/07, at 137-138.




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      Initially, we note that “it is well-settled that arguments of counsel are

not evidence.”    Com. v. Puksar, 951 A.2d 267, 280 (Pa. 2008).             Even

assuming that the prosecutor’s assertion that Walter threatened the victim’s

mother lacked evidentiary support, there is no evidence that the trial court

was influenced by the prosecutor’s assertion.         Indeed, the trial court was

well aware of all of the allegations in the case anyway, as it had sat through

the trial of the case and heard the testimony that allegedly supported the

prosecutor’s argument.     Walter has therefore failed to establish the third

prong of his ineffective assistance of counsel claim. Thus, we conclude that

no relief is due on Walter’s first issue on appeal.

      Next, Walter argues that the PCRA court erred in concluding that trial

counsel was not ineffective for failing to request a mistrial based upon the

cumulative effect of multiple alleged discovery violations on the part of the

Commonwealth.

      Importantly, Walter’s argument is not that trial counsel failed to

request a mistrial for each of the underlying alleged discovery violations.

Walter concedes that trial counsel requested a mistrial each time he

concluded that the Commonwealth had failed to produce in discovery

evidence that it was presenting at trial. See Appellant’s Brief, at 9. Walter’s

argument is that trial counsel failed to request a mistrial based upon the

cumulative effect of all of the alleged discovery violations. See id.

      The fault with Walter’s argument is that


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      “no number of failed [ ] claims may collectively warrant relief if
      they fail to do so individually.” Johnson, supra at 532 (quoting
      Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586,
      617 (2007)). However, we have clarified that this principle
      applies to claims that fail because of lack of merit or arguable
      merit. Sattazahn, supra at 671. When the failure of individual
      claims is grounded in lack of prejudice, then the cumulative
      prejudice from those individual claims may properly be assessed.
      Id.; Johnson, supra at 532 (citing Commonwealth v. Perry,
      537 Pa. 385, 644 A.2d 705, 709 (1994), for the principle that a
      new trial may be awarded due to cumulative prejudice accrued
      through multiple instances of trial counsel's ineffective
      representation).

      We have denied most of Appellant's claims based on lack of
      merit, and there is no basis for a claim of cumulative error with
      regard to these claims. With regard to the few claims that we
      have denied based on lack of prejudice, see one sub-claim in
      Issue 9, two sub-claims in Issue 11, and Issue 15, we are
      satisfied that there is no cumulative prejudice warranting relief.
      These claims are independent factually and legally, with no
      reasonable and logical connection that would have caused the
      jury to assess them cumulatively.

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).

      Walter identifies two separate instances of alleged discovery violations.

First, Walter points to a diary entry of the victim’s, which the Commonwealth

entered into evidence at trial. Trial counsel objected, stating that he had not

received the diary entry from the Commonwealth in discovery.          The trial

court overruled the objection, concluding that the Commonwealth had not

committed a discovery violation. See N.T., Trial, 3/6/07, at 183. The trial

court premised this conclusion upon finding that the prosecutor was credible

in his claim that diary entry was in the Children and Youth file. See id., at




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182. Therefore, this claim failed for a lack of merit, not a lack of prejudice,

and cannot be included in a claim of cumulative prejudice.

       Walter contends that subsequent disciplinary actions taken against the

prosecutor contradicts the trial court’s credibility findings. The PCRA court

notes that, while the prosecutor has admitted to removing original

documents from the Children and Youth file in other cases, he denied

removing the diary entry. See N.T., Trial, 3/7/07, at 86. The PCRA court

found that Walter’s allegation that the prosecutor had “secreted the

[document] from the CYS files simply is not supported on this record.” N.T.,

PCRA hearing, 4/24/14, at 49. We cannot conclude that this factual finding

is an abuse of discretion, and therefore conclude that Walter’s argument

does not alter the trial court’s initial ruling that no discovery violation

occurred.

       This leaves Walter with only a single instance of a discovery violation

objection that the trial court overruled based upon a lack of prejudice:     a

State Trooper’s supplemental report regarding recantation by the victim

which was not provided to Walter during discovery. Trial counsel objected

and requested that it be excluded from evidence. See N.T., Trial, 3/8/07, at

332.   The trial court provided a copy of the report to trial counsel, and

stated “you show me prejudice we’ll deal with it.” Id., at 333. Thus, this

discovery violation could provide a partial basis for a cumulative prejudice

claim. However, as noted above, the only other alleged discovery violation


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was not dismissed for lack of prejudice, but due to a finding that no violation

had occurred. As a result, Walter’s argument that the cumulative effect of

multiple alleged violations has no merit, and affords him no relief on appeal.

      Having found that the PCRA court did not commit an error of law, we

affirm the order denying Walter relief on his PCRA petition.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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