J-A05029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL JOSEPH GROVE                     :
                                          :
                   Appellant              :   No. 281 WDA 2018

               Appeal from the PCRA Order February 6, 2018
  In the Court of Common Pleas of Washington County Criminal Division at
                     No(s): CP-63-CR-0001264-2012


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                             FILED JUNE 28, 2019

      Appellant, Michael Joseph Grove, appeals from the order denying his

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

9541-9546. We affirm.

      On April 14, 2012, Appellant committed a sexual assault upon Victim,

G.R., on the campus of California University of Pennsylvania.     The assault

occurred in a locked bathroom at a social event following a rugby tournament.

Appellant had been serving as a referee for a rugby tournament and Victim

was a participant. At the time of the incident, Victim was eighteen years old

and Appellant was in his late twenties.

      On August 8, 2012, a criminal information was filed charging Appellant

with involuntary deviate sexual intercourse (“IDSI”), sexual assault, indecent
J-A05029-19


assault, and simple assault.1          On December 10, 2013, a jury convicted

Appellant of sexual assault and indecent assault, and acquitted him of the

charges of IDSI and simple assault. On July 3, 2014, the trial court sentenced

Appellant to serve an aggregate term of incarceration of seven and one-half

to fifteen years.     This Court affirmed Appellant’s judgment of sentence on

August 12, 2016, and our Supreme Court denied his petition for allowance of

appeal on January 10, 2017. Commonwealth v. Grove, 1183 WDA 2014,

156 A.3d 336 (Pa. Super. 2016) (unpublished memorandum), appeal denied,

165 A.3d 872 (Pa. 2017).

        Appellant filed this timely PCRA petition on April 20, 2017.             On

November 8, 2017, the Commonwealth filed a response.               On January 12,

2018, the PCRA court filed notice of its intent to dismiss pursuant to

Pa.R.Crim.P. 907. The PCRA court entered an order dismissing the petition

on February 5, 2018. This timely appeal followed. Both the PCRA court and

Appellant complied with Pa.R.A.P. 1925.2

        Appellant presents the following issues for our review:

        I. Did the PCRA court err in dismissing Appellant’s petition for
        post-conviction relief without an evidentiary hearing, when trial
        counsel was ineffective for advising Appellant not to testify at trial
        based on the inaccurate belief that such testimony would open the
        door to Appellant’s prior conviction for sexual assault?
____________________________________________


1   18 Pa.C.S. §§ 3121, 3124.1, 3126, and 2701, respectively.

2 For a more detailed recitation of the factual and procedural history of this
case, we direct the reader to pages one through thirteen of the opinion of the
PCRA court filed July 10, 2018.

                                           -2-
J-A05029-19



      II. Did the PCRA court err in dismissing Appellant’s petition for
      post-conviction relief without an evidentiary hearing, when trial
      counsel was ineffective for not requesting a cautionary instruction
      regarding other wrong acts by Appellant?

Appellant’s Brief at 4 (full capitalization omitted).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

      Moreover, a PCRA court may decline to hold a hearing on the petition if

it determines that the petitioner’s claim is patently frivolous and is without a

trace of support in either the record or from other evidence. Commonwealth

v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). A reviewing court on

appeal must examine each of the issues raised in the PCRA petition in light of

the record in order to determine whether the PCRA court erred in concluding




                                       -3-
J-A05029-19


that there were no genuine issues of material fact and denying relief without

an evidentiary hearing. Id.

      Appellant’s two issues challenge the effective assistance of prior

counsel. Our Supreme Court has long stated that in order to succeed on a

claim of ineffective assistance of counsel, an appellant must demonstrate (1)

that the underlying claim is of arguable merit; (2) that counsel’s performance

lacked a reasonable basis; and (3) that the ineffectiveness of counsel caused

the appellant prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.

2001).

      We have explained that counsel cannot be deemed ineffective for failing

to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc). Moreover, with regard to the second prong, we

have reiterated that trial counsel’s approach must be “so unreasonable that

no competent lawyer would have chosen it.” Commonwealth v. Ervin, 766

A.2d 859, 862-863 (Pa. Super. 2000) (quoting Commonwealth v. Miller,

431 A.2d 233 (Pa. 1981)).

      Our Supreme Court has discussed “reasonableness” as follows:

             Our inquiry ceases and counsel’s assistance is deemed
      constitutionally effective once we are able to conclude that the
      particular course chosen by counsel had some reasonable basis
      designed to effectuate his client’s interests. The test is not
      whether other alternatives were more reasonable, employing a
      hindsight evaluation of the record.           Although weigh the
      alternatives we must, the balance tips in favor of a finding of
      effective assistance as soon as it is determined that trial counsel’s
      decision had any reasonable basis.


                                      -4-
J-A05029-19


Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

      In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but-for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.”    Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have been

met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

      It is presumed that the petitioner’s counsel was effective, unless the

petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d 1167,

1177 (Pa. 1999).       Moreover, we are bound by the PCRA court’s credibility

determinations    where     there   is   support   for   them   in   the   record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

      We have reviewed the briefs of the parties, the certified record before

us on appeal, and the PCRA court opinion filed on July 10, 2018. It is our

conclusion that the PCRA court’s opinion adequately and accurately addresses


                                         -5-
J-A05029-19


each of the challenges to the effective assistance of trial counsel presented by

Appellant and properly concluded that they lack merit. Specifically, the PCRA

court properly concluded that trial counsel was not ineffective because there

is no merit to the underlying claim that trial counsel deprived Appellant of his

right to testify. PCRA Court Opinion, 7/10/18, at 15-20. In addition, the PCRA

court correctly determined that trial counsel was not ineffective for not

requesting a cautionary jury instruction on alleged prior bad acts, which

pertained to Appellant’s behavior at the rugby event.           Id. at 20-22.

Consequently, Appellant’s contrary arguments lack merit.       Accordingly, we

affirm on the basis of the PCRA court’s opinion and adopt its analysis as our

own.3

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2019




____________________________________________


3 The parties are directed to attach a redacted copy of that opinion in the
event of further proceedings in this matter.

                                           -6-
                                                                               Circulated 06/19/2019 09:55 AM




IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA


                                     CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA



                       v.                                    No.       1264-2012
                                                                       281 WDA2018

MICHAEL JOSEPH GROVE,
                                                                                                     t::,1!f.�::.»

                                                                                                     1
                       Defendant.
                                                                                                      l�;·:�,,
                                                                                                       r�v.1·�.:)-;\;;!i

                                        Opinion of Court                                               \.,,si/




court's order dated February 5, 2018, denying his Post Conviction Relief Act (PCRA) petition.

       On February 23, 2018, Robert E. Mielnicki, Esquire, acting on behalf of Michael Grove

(hereinafter "Defendant"), filed a timely Notice of Appeal to the Superior Court from the denial

of Defendant's PCRA petition.

                                         Factual History

       This case and the criminal charges arise out of a sexual assault which occurred on April

14, 2012 on the campus of California University of Pennsylvania, located in Washington County.

During trial, the jury heard evidence that on April 14, 2012, G,   L   R   , (hereinafter referred

to as "Victim") was participating in a social event at an on campus residence following

California University of Pennsylvania's annual alumni rugby game when she was sexually




                                                 1
assaulted by the Defendant. 1 At the time of the incident, the Victim was a freshman at California

University of Pennsylvania.

        On the morning of April 14, 2012, the Victim was participating in the alumni rugby event

at the University. During the course of the rugby match, the Victim encountered the Defendant,

who was serving as a referee. The Victim testified that there was alcohol present at the game, but

she did not imbibe any alcohol.

        After the matches concluded, members of the team and the alumni, including the Victim,

returned to a residence on campus that was referred to as the "rugby house."2 The Victim did not

reside at the rugby house. The Victim and some fellow teammates then attended a social event

held for the alumni game at McMonagle's Pub nearby.

        The Victim testified that alcohol was served at the pub, but the Victim did not drink any

alcohol. The Victim testified she was given a wristband by the pub to indicate that she was not

yet twenty-one (21) years of age. The Victim testified that she again encountered the Defendant

at the pub. The Victim explained that although she did not know the Defendant by name, when

she saw the Defendant at the pub she recognized him as the rugby referee and they

acknowledged one another by nodding at each other. She further testified that as she proceeded

to walk by Defendant, he tapped the Victim on her buttock.'

         Later that evening, the Victim joined other members of the male and female rugby teams

and left the pub and returned to the rugby house. While at the rugby house, the Victim again

encountered the Defendant as she stood in the kitchen waiting to use the bathroom.
                                                                                   4




1 TT 24 (The numerals following the initials TT refer to the official transcript of the jury trial proceedings conducted
from December 9, 2013, through December 10, 2013.)
2
  TT24-31; 187-189.
3
  TT 33-38; 190; 310-312.
4
  TT 38; 44-49; 114; 191-195.

                                                           2
           The Victim made conversation with the Defendant until the bathroom became available.

During the conversation, the Victim commented to Defendant that he did a poor job of refereeing

the rugby match. At that point, the Defendant grabbed the Victim's arm and pulled her close to

him and he said to her, "let me make it up to you." The Victim tried pushing the Defendant

away, but he continued to pull her close to him, repeating "let me make it up to you." The Victim

testified that the actions made her uncomfortable and she tried telling the Defendant she was gay

to turn him off.5

           The bathroom door opened and the Defendant quickly dropped his grasp of the Victim.

The Victim's friend, R ' l S              ·, exited the bathroom. After Ms. S1 ·      exited the

kitchen, the Victim testified that she was immediately forcibly drug into the bathroom by the

Defendant. The Victim further testified that the bathroom door was locked behind her. The

Victim indicated that the incident happened very quickly and she did not yell for help. The

Victim also indicated that there was no one in the kitchen to hear her cries for help. She indicated

that the television and music were being played loudly from the other room and she did not

believe anyone would hear her.6

           The Victim testified that after the bathroom door was shut and locked behind her, the

Defendant began kissing her face. The Victim testified that she attempted to push away from the

Defendant. However, the Defendant began touching her vaginal area. Victim indicated she had.

spandex on under her sweatpants, so the Defendant's hand, despite his efforts, did not come into

skin contact with her vaginal area. The Victim continued to try to push away, but the Defendant

kept pulling her close to him with one hand. The Victim further testified that the Defendant

continuously attempted to force the Victim to touch and stroke his penis. The Defendant then


5
    TT 49-53; 115-122.
6
    TT 53-57; 122-135; 214-216.

                                                   3
grabbed the Victim's pigtail and tried shoving his penis into her mouth. However, the Victim

testified that she kept her mouth shut, so the Defendant's penis touched her lips and teeth, but did

not pass that point into her mouth. Testimony demonstrated that when the Defendant was

unsuccessful in putting his penis into Victim's mouth, he began kissing her neck and ear.7

           The Victim testified that during the assault she began trying to find her cell phone to

reach out for help. The Victim found her phone and texted her friend, .R                        ·. The

Victim had exchanged text messages with Ms. S· · ·                earlier in the day, so her name was at

the top of her text message list. Testimony demonstrated that the Victim held her phone away

from her body for fear that the Defendant would see her. Therefore, the Victim was blindly

attempting to text message Ms. S                 · "Help." However, the Victim's first attempted text

message to Ms. S,              .. spelled out the word "hall." Following the word "hall," the Victim

typed "help plz."

           Ms.   s ..       · testified that she was sitting in a bedroom with A.            when she

received a text message from the Victim. Ms. S ·               · ·esponded to the message and inquired

where the Victim was located. The Victim responded via text message that she was in the

bathroom. Soon thereafter, Ms. S                r began knocking on the door and attempting to enter

the locked bathroom. 8

           A.s soon as Ms. S,.          � began pounding on the bathroom door, the Defendant threw

the Victim off of him and pushed her into the corner. Ms. S                 · then yelled out "let me in or

I'm going to have to break in." Ms. Schleicher testified that she ran to get a butter knife to try to




7
    TT 57-62; 83-85; 136; 141-143.
8
    TT 62; 68-74; 195; 259; 293-295; 314-315.

                                                       4
unlock the door. The Defendant then proceeded to unlock the door and exit. As Ms. S

was retrieving the butter knife, the door opened and the Defendant was standing in the doorway.9

         The Victim testified she remained on the bathroom floor and began hysterically crying .

Ms. S.         . : consoled her. The Victim then texted her boyfriend, I<              A,    ,   who came to

the house. Testimony demonstrated that at some time after Ms. S. ,                   · left the bedroom, the

Defendant came in and began talking to A                D      . Ms. D       . testified that the Defendant ·

stated "someone should go get that girl, she is pretty drunk." As Victim was exiting the

bathroom, the Victim saw the Defendant sitting on a bed in a bedroom talking to Ms.                r     . The
Victim then informed Mr. Ai             and Ms. St.          that the Defendant had assaulted her. Ms.

S,          then began yelling for Defendant to get out of the house."

         The Victim remained at the house as the police were called to the scene. Officer Timothy

Sheehan, of the California Borough Police Department, arrived at the scene and testified that

when he arrived the Victim was crying hysterically. He took a verbal statement from the Victim.

Officer Sheehan further testified that the Victim came to the police station the next day or so and

gave a written statement. Based on the information received, Officer Sheehan filed criminal
                                   11
charges against the Defendant.

                                                 Procedural History

         On August 8, 2012, the Washington County District Attorney's Office filed a criminal

information charging the Defendant as follows:

         Count 1: IDSI Forcible Compulsion-18 Pa.C.S.A. § 3123(a)(l)-Felony of the i"

         Degree

         Count 2: Sexual Assault-18 Pa.C.S.A. § 3214.1-Felony of the 2nd Degree

9
   TT 74- 75; 195-197; 216; 222-223; 315-316.
10
    TT 76-80; 198-204; 261; 265; 299-30 l; 316-317; 333-337; 355-360; 375-376;
11
    TT 81; 86; 205-207; 266; 380-385;

                                                       5
        Count 3: Indecent Assault Forcible Compulsion-18 Pa.C.S.A. § 3126(a)(2)-

        Misdemeanor of the l " Degree

        Count 4: Simple Assault-18 Pa.C.S.A. 2701(a)(l)-Misdemeanor of the              2nd   Degree.12

A jury trial was conducted on December 9th and 101h of 2013 after which the jury found the

Defendant guilty of Sexual Assault and Indecent Assault by Forcible Compulsion or Threat of

Forcible Compulsion.l ' On December 10, 2013, the trial court revoked the Defendant's bond

and remanded him to the Washington County Correctional Facility.14 Additionally, the trial

court ordered the Washington County Adult Probation Office to conduct a pre-sentence

investigation and the Defendant to be assessed by the Pennsylvania Sexual Offenders
                                                                        15
Assessment Board to determine if he was a sexually violent predator.

        On July 3, 2014, the trial court sentenced the Defendant as follows:

                         The Pennsylvania Sexual Offenders Assessment Board did
                 not assess the Defendant as a sexually violent predator and neither
                 party is seeking additional :findings in that regard.

                        The Court finds several aggravating circumstances:

                         The Defendant was a Megan's Law registered offender at
                 the time of the commission of the offense; furthermore, the Court
                 finds that the Defendant was acting as an official, as a referee
                 during the commission of the offenses and in that capacity was
                 standing in a position of authority over the participants in the
                 rugby tournament, particularly the college student participants,
                 including the victim, the nature of the Defendant's prior offense,
                 although it is reflected in the prior record score, it was a sexual
                 offense involving a minor child, 7 years younger than the
                 Defendant; the victim of these offenses was also 7 years younger
                 than the Defendant; the Court finds there was alcohol involved on
                 the Defendant's part; and finally, the Court finds as an aggravating
                 circumstance the violent nature of the offense.



12
   Docket Entry 8.
13
   Docket Entry 14.
!4 ld.
is Id.

                                                  6
        With respect to whether the Defendant is subject to the
mandatory penalty under section 9718.2 (a) of the Sentencing
Code, there is no question that the Defendant has been a Megan's
Law registrant for 10 years pursuant to his plea of April 26, 2005,
which places the Defendant in a category of a recidivist offender
under that section, which would mandate a minimum sentence of
25 years. However, the Defendant disputes that his prior
conviction required Megan's Law registration and disputes that he
is subject to the mandatory sentence.

         The standard for the Court's determination is a
preponderance of the evidence. The Court finds although it was
not a mistake, that it was clear that the Defendant entered a plea to
Unlawful Contact with Minors, Indecent Assault and Corruption of
Minors, the docket record is not clear. The Court is constrained to
resolve the ambiguity in the Defendant's favor, and therefore holds
the mandatory minimum does not apply. However, as a result of
this and the aggravating factors set forth above, the Court finds that
it is appropriate to depart from the sentencing guidelines in this
case.

        Therefore, the Court sentences the Defendant in accordance
with the statutory maximums, which although severe and outside
the sentencing guidelines, are less than half of the mandatory
penalty the Defendant was facing.

        Based on the foregoing, the jury having found the
Defendant guilty on December 10, 2013, the Court sentences the
Defendant on the charge of Sexual Assault, § 3124 .1 of the
Criminal Code, a felony of the second degree, to pay the costs of
prosecution, pay restitution to Geena Romero in the amount of
$5,459.84 before paying any fines and costs, and be confined to an
appropriate state correctional institution for no less than 5 years
and no more than 10 years. The Court recommends that the
Defendant be treated as a sexual offender, that he be assessed for
alcohol and other drug addiction and be treated accordingly, and
that he receive perpetrator's counseling. The Defendant's parole
shall be at the discretion of the Pennsylvania Board of Probation
and Parole. Special conditions of the Defendant's parole are that
he is now a lifetime Megan's Law registrant and must register with
the Pennsylvania State Police for life, with notice to the
community in accordance with 42 Pa.C.S.A. § 9979 (a)(3), and
follow all requirements thereof. A further condition of the
Defendant's sentence is that he have no contact with Geena
Romero or her family or any of the witnesses in the trial and that
he be excluded from the California University campuses.

                                 _7
                         On the charge of Indecent Assault by Forcible Compulsion
                 or Threat of Forcible Compulsion,§ 3126 (a)(2) of the Criminal
                 Code, a misdemeanor of the first degree, Defendant is sentenced to
                 be confined in an appropriate state correctional institution for a
                 period of no less than 2 Yi and no more than 5 years. This sentence
                 shall run consecutively to the Sexual Assault and under the same
                 terms and conditions.

                        The total sentence is 7 Yi to 15 years. The Defendant shall
                 be given credit for time served since December 10, 2013 .16

        On July 22, 2014, Attorney Shrager filed a notice of appeal to the Superior Court from

the Defendant's judgment of sentence dated July 3, 2014.17 On August 1, 2014, the trial court

ordered the Defendant to file his Concise Statement of Matters Complained of on Appeal within

twenty-one (21) days of the order.18 Attorney Shrager requested two extensions for filing the

concise statement which were granted by the trial court setting the filing date for no later than

November 26, 2014.19 On November 5, 2014, Robert Mielnicki, Esquire entered his appearance

on behalf of the Defendant due to the untimely passing of Attorney Shrager.t" On November 20,

2014, Attorney Mielnicki filed a concise statement on behalf of the Defendantraising the

following issues:

     1. "The court erred in overruling a defense objection to testimony from Commonwealth

         witness and the alleged victim, G:            , regarding that fact that she was once a

         pharmacy student at California University, participated in rugby, but could not return to

         school after the spring of 2013. Such testimony was not relevant to any issue material to

         the charges against Defendant, and the probative value of such evidence/testimony was

         outweighed by the danger or risk of unfair prejudice.

16
   Docket Entry 19.
17
   Docket Entry 2 0.
18
   Docket Entry 23.
19
   Docket Entries 25 and 27.
20
   Docket Entry 29.

                                                  8
2. The court erred in denying a defense motion for mistrial when the Commonwealth

   elicited testimony from Commonwealth witnesses and alleged victim, G                   R      ,, that

   Defendant was known as 'Chester.' Counsel understands that such reference would not

   automatically suggest that such was short for 'Chester the Molester.'

3. The court erred in permitting testimony regarding and introduction of a photograph of a

   text message from Commonwealth witness and alleged victim, C                    R      , when such

   was not provided to Defendant in discovery.

4. The court erred in sustaining an objection to defense questioning of Commonwealth

   witness and alleged victim, G         R         '»   by stating 'Sustained, ladies and gentlemen, as

   I said, the questions are not evidence. Only the answers to the questions are evidence and

   although attorneys have different styles of questioning, lets not suggest, in our questions,

    suggest something that we know didn't happen.' Such commentary painted defense

    counsel in a bad light.

5. The court erred in sustaining an objection to defense questioning of Commonwealth

    witness and alleged victim G         R      , by stating: 'I'm sure what makes sense today

    and what made sense than are two different things.'

6. The court erred in sustaining a Commonwealth objection to defense questioning of

    Commonwealth witness, and alleged victim G..                R       about whether she believed

    that her boyfriend, J     , would have been upset if she had been with another man. Such

    was not speculation but a question about what she believed and thus relevant motive. In

    fact, to the extent that current counsel can decipher Attorney Shrager's defense, it seemed

    to be that R      needed to cover up a consensual encounter with Defendant, with a story




                                               9
   so as to not upset Jr    or be embarrassed. Attorney Shrager, for reasons unknown, did not

   order closing arguments. Current counsel is attempting to obtain such.

7. The court erred in permitting Commonwealth witness, and alleged victim G,             R

   to read into evidence her prior statement to police. Such was not a prior consistent

   statement and contained reference to other inappropriate and criminal conduct by

   Defendant 'touching the buttocks of other girls.'

8. The court erred in permitting an inappropriate re-redirect of Commonwealth witness and

   alleged victim G        . R     , which became a series of leading questions by the

   Commonwealth. This re-redirect was not even questioning, but basically argument by the

   Commonwealth, followed by 'yes' or 'yeah' from the witness.

9. The court erred in overruling an objection to Commonwealth questioning of

   Commonwealth witness, R ' : S·                 ·, which was leading and beyond the scope of

   cross examination. The Commonwealth redirects and re-redirects of its own witness

   became argument as opposed to inquisitive. Numerous questions from the

   Commonwealth of its own witnesses were of the 'is that correct' variety.

10. The court erred in sustaining a Commonwealth objection to defense questioning of

   Commonwealth witness, R                        , regarding 'walk of shame.' While the

   question could have been presented in a more professional way, such was appropriate

   where S,           described the conduct of the alleged victim following her alleged

   encounter with Defendant. In other words, S              was permitted to testify about

   R      ·'s behavior after her encounter with Defendant. The relevance of such had to be

   that it was consistent with being sexually assaulted. This, however, was S,               ·' s

   opinion and Defendant should have been permitted, even though it tried to do such in an



                                             10
   unprofessional way, to explore with the witness that someone could exhibit similar

   symptoms for other reasons.

11. The court erred when it denied a defense motion for mistrial when Commonwealth

   witness, A    , D        , referred to Defendant as 'Chester.' This was the second time and

   Commonwealth elicited such.

12. The court erred in overruling a defense objection to Commonwealth questioning of

   Commonwealth witness, A           · Di   , regarding the fact that Defendant was suspended

   as a rugby referee. Such was irrelevant and the probative value of such was outweighed

   by the danger of unfair prejudice.

13. The court erred in sustaining a Commonwealth objection to defense questioning of

   Commonwealth witness, A                  , regarding underage drinking by participants in

   the rugby event, where the alleged victim denied drinking at such event, in part, due to

   the fact that she was underage.

14. The court erred in permitting the testimony of Commonwealth witness, M           .J      . that

   Defendant was 'going around ... trying to pick up some girls, but grabbing butts as well.'

   Such was uncharged criminal conduct, the Commonwealth provided no notice and was

   extremely prejudicial.

15. The court erred in permitting Commonwealth witness, J       A · ., to testify that the

   alleged victim, G    ,R        ,, was eventually not the same as she was before the alleged

   sexual assault. The court stated that an injury was an element of simple assault, but such

   does not actually require an actual injury, but an attempt, and the injury must be bodily

   injury.




                                             11
      16. The court erred in sustaining a Commonwealth objection to introduction by the defense

           of a tweet by G,    R      , about smoking kush and drinking alcohol, during cross-

           examination of Commonwealth witness, J1      A

      17. The court erred in overruling a defense objection to Commonwealth witness, Officer

           Sheehan's testimony as to G      R       's statement to him. The Court notes Attorney

           Shrager's continuing objection, although new counsel cannot find the actual objection.

           Reading the statement twice was prejudicial to Defendant."21


      On June 9, 2015, the trial court filed its opinion submitting that the Defendant's

judgment of sentence should be affirmed.22 On August 12, 2016, the Superior Court

affirmed the Defendant's judgment of sentence.23 On September 12, 2016, the Defendant

petitioned for allowance of appeal before the Supreme Court of Pennsylvania which was

denied by order dated January 10, 2017.24

           On April 20, 2017, Attorney Mielnicki filed a PCRA petition on behalf of the

Defendant.25 On June 6, 2017, the trial court ordered the Commonwealth to file a response

within thirty (30) days of the order.26 On August 24, 2017, the trial court granted a motion to

enforce the Commonwealth to file a response ordering the Commonwealth to file a response

within 30 days of the order.27 On November 8, 2017, the Commonwealth filed a response to

Defendant's PCRA petition.28 On January 12, 2018, the trial court filed notice that Defendant's




21
   Docket Entry 31.
22
   Docket Entry 34.
23
   Docket Entry 3 5.
24   Id.
25
   Docket Entry 3 6.
26
   Docket Entry 3 7.
27
   Docket Entry 39.
28
   Docket Entry 42.
                                                   12
PCRA petition was to be dismissed in twenty (20) days from the date of the notice.29 On

February 5, 2018, the trial court dismissed the Defendant's PCRA petition" On February 23,

2018, Attorney Mielnicki filed Defendant's notice of appeal from the trial court's dismissal order

dated February 5, 2018.31 On March 19, 2018, the trial court ordered Defendant to file his

Concise Statement of Matters Complained of on Appeal within twenty-one (21) days of the date

                32
of the order.

        On April 4, 2018, Attorney Mielnicki filed Defendant's concise statement alleging eleven

(11) claims of error; however those claims can be condensed into the following issues:

     1. "This Honorable Court erred in dismissing Defendant's Petition for Post-Conviction

        relief, based on his claim that Attorney Shrager advised him not to testify, since such

        would automatically open the door to Defendant's prior conviction for sexual assault, a

        2004 conviction for Indecent Assault. This was erroneous advice that constituted the

        ineffective assistance of counsel, which led the Defendant to decide not to testify, and

        thus prejudiced him in a case that largely came down to the word of the alleged victim."

     2. "This Honorable Court erred in dismissing Defendant's Petition for Post-Conviction.

         relief, based on his claim that Attorney Shrager was ineffective in not requesting a

         cautionary instruction regarding other bad or wrong acts by Defendant, that this

         Honorable Court ruled were admissible, without an evidentiary hearing.t' "




29
   Docket Entry 43.
30
   Docket Entry 44.
31
   Docket Entry 45.
32
   Docket Entry 46.
33 Docket
          Entry 47. The Defendant's concise statement raises eleven (11) separate points, but the entirety of the
concise statement is meant to raise two separate claims of ineffective assistance of counsel. The two issues cited
above reflect all of the issues raised in the Defendant's PCRA petition.


                                                         13
                                           Legal Analysis

       Defendant's concise statement raises two issues on appeal, but the trial court finds that

the Defendant is not entitled to relief on either of those claims.

       The PCRA provides in pertinent part that:
                                                                                                   r .
        (a) General rule. -To be eligible for relief under this subchapter, the petitioner
        must plead and prove by a preponderance of the evidence all of the following:

                                             *       *        *"
            (2) That the conviction or sentence resulted from one or more of the
            following:

               (i)   a violation of the Constitution of this Commonwealth or the
               Constitution or laws of the United States 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.

               (ii) 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.

               (iii) A plea of guilty unlawfully induced where the circumstances make it
               likely that the inducement caused the petitioner to plead guilty and the
               petitioner is innocent.

               (iv) The improper obstruction by government officials of the petitioner's
               right of appeal where a meritorious appealable issue existed and was
               properly preserved in the trial court.

                                                 *        *    *
                (vi) The unavailability at the time of trial of exculpatory evidence that has
                subsequently become available and would have changed the outcome of
                the trial if it had been introduced.

                (vii) The imposition of a sentence greater than the lawful maximum.

                (viii) A proceeding in a tribunal without jurisdiction

            (3) That the allegation of error has not been previously litigated or waived.

42 Pa.C.S. § 9543.


                                                     14
       Defendant's concise statement raises two allegations of ineffective assistance of counsel.

Pennsylvania employs a three-prong test (the "Pierce" test), derived from the guidelines

espoused by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), to

evaluate ineffective assistance of counsel claims. Commonwealth v. Pierce, 498 A.2d 423 (Pa.

Super. 1985), aff' d, 527 A.2d 973 (Pa. 19.87). Specifically, to be entitled to post-conviction

relief, a defendant must demonstrate that:

       (1) the claim underlying the ineffectiveness claim has arguable merit;

       (2) counsel's actions lacked any reasonable basis; and

       (3) counsel's actions resulted in prejudice to [the defendant].

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (citations omitted) .. It is well-settled that a

court is not required to analyze the elements of an ineffectiveness claim in any particular order of

priority; instead, if a claim fails under any necessary element of the Strickland test, the court may

proceed to that element first. Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011) (citing

Strickland, supra; Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)).

       The first allegation raised by PCRA counsel is that trial counsel was ineffective for

giving the Defendant erroneous advice which caused the Defendant not to testify.         Defendant's

argument fails under the first prong of Pierce as it lacks merit.

               The decision of whether or not to testify on one's own behalf is
               ultimately to be made by the defendant after full consultation with
               counsel. In order to sustain a claim that counsel was ineffective for
               failing to advise the appellant of his rights in this regard, the
               appellant must demonstrate either that counsel interfered with his
               right to testify, or that counsel gave specific advice so
               unreasonable as to vitiate a knowing and intelligent decision to
               testify on his own behalf

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000)(emphasis added).



                                                 15
           In the instant case, the following colloquy was conducted by the trial court on December

10, 2013:

THE COURT: You also understand your right to take the witness stand and testify?

THE DEFENDANT: Yes, I do.

THE COURT: You went over that with Mr. Shrager?

THE DEFENDANT: Yes, I have.

THE COURT: And you also have the right not to testify and remain silent, that's your

constitutional right?

THE DEFENDANT: Yes.

THE COURT: And you have gone over, with Mr. Shrager, whether you should take the stand

and testify or not?

THE DEFENDANT: Yes.

THE COURT: And you and your counsel made that decision not to testify?

THE DEFENDANT: Yes, I understand.34



ATTORNEY SHRAGER: Michael, we have spent substantial time talking about your absolute

right, as Judge DiSalle said, to testify or not testify; is that right?

THE DEFENDANT: Correct.

ATTORNEY SHRAGER: And you've talked about it with me, in fact, as recently as Sunday,

prior to jury instruction on Monday; is that right?

THE DEFENDANT: Yes.

ATTORNEY SHRAGER: You were in my office on Sunday afternoon?

THE DEFENDANT: Yes.

34
     Trial Transcript, Page 3 5 l (December IO, 2013 ).

                                                          16
ATTORNEY SHRAGER: You've talked about this with your family?

THE DEFENDANT: Yes.

ATTORNEY SHRAGER: You've talked about it with your girlfriend?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions about your constitutional rights, sir?

THE DEFENDANT: No.

THE COURT: You understand your counsel's strategy to testify or not testify?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions about it?

THE DEFENDANT: No, sir.35

The testimony above demonstrates that Attorney Shrager did not interfere with the Defendant's

right to testify as the Defendant underwent a lengthy colloquy which reviewed his right to testify

and his decision, after consultation with his counsel, to not testify.

           PCRA counsel nevertheless makes the argument that Attorney Shrager's advice to the

Defendant was so unreasonable that he could not knowingly and intelligently waive his right to

testify at trial. PCRA counsel relies on the case of Commonwealth v. Nieves to support this

allegation. However, in the case of Nieves, the defendant wanted to testify and trial counsel

admitted that he told the defendant to not testify because he could be impeached in his murder

trial with his prior firearm and drug trafficking convictions. Nieves, 746 A.2d at 1104-1105. In

the Nieves case, trial counsel essentially assured the defendant that he would be impeached by

his prior criminal convictions. Id. The defendant's crimes in Nieves could not be used as

impeachment evidence as the prior convictions were not for crimen falsi. Id. Thus, in Nieves,



35
     Trial Transcript, pg. 352 (December 10, 2013).

                                                      17
trial counsel's advice to the defendant about crimen falsi impeachment was erroneous, but

convinced the defendant to not testify.

          The Nieves case is distinguishable from the case at hand because trial counsel had to

consider the possibility of the Defendant's prior bad acts becoming admissible as impeachment

evidence or otherwise. In this case, the Defendant was on trial for sexual assault of a victim who

was seven years younger than him. The Defendant was previously convicted of Indecent Assault

of a minor child who was seven years youngerthan him and resulted in his Megan's Law

registration. Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible

to show that a defendant acted in conformity with those past acts or to show criminal propensity.

Pa.R.E. 404(b)(1 ). However, evidence of prior bad acts may be admissible when offered to prove

some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge,

identity, and absence of mistake or accident. Pa.RE. 404(b)(2). It was reasonable for Attorney

Shrager to be concerned that the Defendant could be subject to harmful cross examination based

on this prior bad act and to advise him not to testify. The trial court submits that Attorney

Shrager' s advice was not erroneous and was not so unreasonable that the Defendant could not

knowingly and intelligently waive his right to testify. Thus, this allegation fails for lack of

arguable merit.

           Additionally, PCRA counsel admits in the PCRA petition, "It is not beyond the realm of

possibility that Defendant could have opened the door to prior bad acts through his testimony,

but his simple act of testifying would not have done such."36 As already noted above, Attorney

Shrager had to be concerned with the Defendant's prior conviction being admitted as a prior bad

act. However, even if it could not come in automatically, Attorney Shrager had to be concerned

with the Defendant taking the stand and opening the door to the admission of his prior conviction

36
     PCRA petition, pg. 3 (Docket Entry 36).

                                                  18
which could have certainly impugned the Defendant in the eyes of the jury. This is another point

which distinguishes this case from Nieves. In Nieves, the defendant was on trial for murder so it

would have been extremely difficult for the defendant to open the door for the admission of his

prior firearms and drug trafficking convictions. The trial court submits that the facts of this case

would make it much more likely for the Defendant to open the door for the admission of his prior

indecent assault conviction.37 The following statement was made on the record by the

Commonwealth:

         ASSISTANT DISTRICT ATTORNEY TRACI MCDONALD: We would indicate, for

         the record, that should there be character evidence that is introduced, that certainly, we

         are, in fact, going to raise the issue that he was listed as a Megan's Law offender and has

         other crimes in his background that involve crimes of a sexual nature. So absolutely.38

This statement was made in the presence of the Defendant so he was clearly made aware that the

Commonwealth was going to attempt to admit his prior conviction at the slightest opening of the

door by any character witness including the Defendant. It was reasonable for Attorney Shrager

to advise the Defendant not to take the stand in order to protect him from that possibility.

        PCRA counsel's request for a hearing on this matter indicated that the Defendant and the

Defendant's mother, Susan Grove, would offer testimony that Attorney Shrager told the

Defendant that he could not testify. The trial court submits that Attorney Shrager's untimely

passing would make a hearing on the matter completely one-sided. The Defendant and his

mother could offer any testimony to benefit the Defendant, but there could be no rebuttal from

Attorney Shrager about the advice that he offered. The trial court submits that the matter is more


37
   See Commonwealth v. Buxton, No. 1384 WDA 2015, 2016 WL 832512 (March 2, 2016)("Counsel also stated that,
if Appellant testified, 'the door could have easily been opened on' his prior convictions for resisting arrest and
aggravated assaults on police officers.")
38
   Trial Transcript, pg. 348 (December IO, 2013).

                                                       19
appropriately resolved based upon the facts that are currently in the record. The record

demonstrates that the Defendant acknowledged reviewing the strategy of not testifying with

Attorney Shrager and that the Defendant agreed with that Strategy.

        The second allegation made by PCRA counsel is that trial counsel was ineffective for

failing to request a cautionary jury instruction regarding prior bad acts introduced against the

Defendant. PCRA counsel asserts that a cautionary jury instruction was necessary to prevent the

jury from considering the prior consistent statement read by the victim and the testimony of a · · ·

witness about Defendant grabbing the buttocks of other women in the wrong light. Defendant's

second allegation of ineffectiveness fails under the second prong of Pierce because trial

counsel's decision to not request a cautionary jury instruction can be seen as reasonable trial

strategy. The Superior Court of Pennsylvania addressed the admissibility of this evidence on

Defendant's direct appeal, and the holding is tied to the claim raised by the Defendant presently.

The Superior Court ruled as follows:

               This Court finds no abuse of discretion by the trial court. First, as
               the Commonwealth and the trial court stated, the evidence was not
               introduced to establish appellant's bad character in violation of
               Pa.R.E. 404. The Commonwealth offered the evidence to counter
               the argument that the sexual assault was consensual because
               appellant earlier had grabbed the victim's buttocks and that her
               failure to yell or fight when he confronted her at the Rugby House
               indicated that she was willing to engage in sexual activity with
               appellant. This evidence indicated that while appellant grabbed the
               victim's buttocks, he did the same to other people.

               Second, the Commonwealth did not need to provide notice of its
               intention to introduce this evidence because the Commonwealth
               only did so in response to the appellant's argument that the sexual
               activity was consensual. As the trial court stated, appellant opened
               the door to this evidence when he suggested that the victim was
               aware that appellant was targeting her by this action. Evidence that
               he grabbed the buttocks of other women refuted this contention.
               Third, this Court finds that the trial court did not abuse its



                                                 20
               discretion when it determined that the probative value of the
               evidence outweighed the prejudicial effect.

Commonwealth v. Grove, No. 1183 WDA 2014, 2015 WL 5377811, at 6 (Pa. Super. Ct. Aug. 12,

2016). Since admissibility can no longer be challenged by the Defendant, he is pursuing a claim

that a cautionary jury instruction was necessary to protect against this evidence being considered

in the wrong context by the jury. As can be reasoned from the Superior Court opinion, the

Commonwealth introduced this evidence for rebuttal purposes and the evidence carried probative

value that outweighed its prejudicial effect.

       Based on the view of the Superior Court, that this evidence was more probative than

prejudicial, it would be reasonable for Attorney Shrager to forego a request for a cautionary jury

instruction in order to avoid drawing undue attention to the evidence. The Supreme Court of

Pennsylvania ruled in a previous case regarding an allegation that trial counsel was ineffective

for failing to request a cautionary jury instruction as follows:

                Appellant provides no factual support whatsoever for his bald
                assertion that the jury imputed prior unrelated criminal misconduct
                based on the references to his pre-trial incarceration, much less
                factual support which establishes by a "preponderance of the
                evidence" that the jury imputed such prior criminal misconduct.
                See 42 Pa.C.S. § 9543(a). In any event, trial counsel may
                reasonably decline to request a limiting instruction with regard to
                prior criminal misconduct where such an instruction might have
                served to emphasize what might otherwise have gone relatively
                unnoticed by the jury.

Commonwealth v. Copenhefer, 719 A.2d 242-253 (Pa. 1998). The trial court had determined

that the probative value of this evidence outweighed the prejudice and allowed the jury to hear it.

The evidence in question pertained to the Defendant grabbing the buttocks of women other than

the Victim. It was reasonable for Attorney Shrager to avoid asking for a cautionary jury

instruction in order to avoid drawing further attention to any "criminal" misconduct the



                                                  21
Defendant may have committed against women, other than the victim. This is a reasonable

strategy designed to protect the Defendant from any further adverse inference that did not have

to do with the victim. Attorney Shrager's untimely passing makes it impossible to obtain any

testimony regarding his trial strategy, so the court must draw inferences from the trial record.
                                                                                                 39


This court finds that Attorney Shrager pursued a reasonable trial strategy in the Defendant's

interest. Therefore, the second allegation fails under the second prong of Pierce.

         Based on all the aforementioned, the trial court submits that the Defendant has failed to .

demonstrate that he is entitled to relief on either of his Post Conviction Relief Act claims. Thus,

the trial court submits that the Superior Court should affirm the dismissal of the Defendant's

PCRA petition.



                                                                                 By the Court,




Date:

                                                                                      John F. DiSalle, J.




39  See Commonwealth v. Colavita, 993 A.2d 874, 895 (Pa. 2010)(stating "it is particularly problematic to render an
 appellate finding of per se unreasonableness in a case where the PCRA judge, whose decision was under review,
 discerned a reasonable strategy from the trial record alone and, for good measure, the PCRAjudge also presided at
 trial. At a minimum, these circumstances should at least have given the panel pause before rendering its per se
 finding.").
                                                         22
