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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
STEPHEN NOEL JESSEE,                      :         No. 1075 MDA 2017
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, June 5, 2017,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0003413-2013


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 09, 2018

        Appellant, Stephen Noel Jessee, appeals from the June 5, 2017 order

entered by the Court of Common Pleas of York County denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review,

we affirm.

        A previous panel of this court provided the following factual and

procedural history:

             On February 8, 2013, Sergeant Lisa Layden
             interviewed K.W. at the York County District
             Attorney’s Office.     During that interview, K.W.
             reported that her stepfather, [a]ppellant, had sexually
             abused her on numerous occasions. K.W. reported
             that [a]ppellant began having sexual contact with her
             when she was fourteen years old, and that the two
             had sexual intercourse when she was approximately
             fifteen years old. Specifically, K.W. stated that the

1   42 Pa.C.S.A. §§ 9541-9546.
J. A15040/18


          sexual intercourse took place at the family’s home in
          Spring Grove, Pennsylvania and also in a trailer at
          Conewago Isle Campground in Dover, Pennsylvania.
          K.W. further explained that she and [a]ppellant have
          a daughter together, that the two shared custody of
          the child, and that she was concerned for her
          daughter’s safety.

          On April 5, 2013, Sergeant Layden filed a criminal
          complaint charging [a]ppellant with involuntary
          deviate sexual intercourse [(“IDSI”)], statutory
          sexual assault, aggravated indecent assault, indecent
          assault, and corruption of minors.[Footnote 1] On
          May 8, 2013, K.W. testified at [a]ppellant’s
          preliminary hearing before Magisterial District Judge
          Thomas Reilly.      K.W.’s testimony tracked the
          statement that she had given to Sergeant Layden
          earlier.   K.W. testified that [a]ppellant “sexually
          molested [her] from age 14 until [she] was 17.” K.W.
          also testified that she and [a]ppellant had sexual
          intercourse at the family’s home in Spring Grove,
          Pennsylvania when she was fourteen years old.

               [Footnote 1] 18 Pa.C.S. §§ 3123(a)(7),
               3122.1, 3125(a)(8), 3126(a)(8), and
               6301(a)(1), respectively.

          On March 31, 2014, [a]ppellant proceeded to a jury
          trial. On that same day, the Commonwealth called
          K.W. as a witness. K.W. contradicted her earlier
          statement to police and her preliminary hearing
          testimony, and testified that she and [a]ppellant did
          not have sexual contact until she was seventeen years
          old. The Commonwealth then proceeded to question
          K.W. about her prior inconsistent testimony, which
          she had given at [a]ppellant’s preliminary hearing:

               Q:    So at [the preliminary hearing] you
                     indicated that you were 14 when
                     this began, is that correct?

               A:    Yes.




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                Q:    Okay. And was that the truth?
                      Were you under oath when you
                      indicated that?

                A:    Yes.

                Q:    And today you are testifying that
                      this happened when you were 17
                      1/2?

                A:    Yes.

                Q:    Why did you say 14 at the time?

                A:    At the time I had believed what
                      others had told me.

                Q:    You had believed what others told
                      you?

                A:    Yes.

                Q:    And who else      was     telling   you
                      something?

                A:    My    ex-boyfriend        and       my
                      grandmother.

                Q:    What did they tell you?

                A:    They told me that [a]ppellant had
                      been having sex with me since I was
                      14, and I believed it.

                Q:    Okay.    So you don’t remember
                      having sex?

                A:    No.

          Notes of Testimony [], 3/31/2014 at 75-76.

          On April 1, 2014, notwithstanding K.W.’s testimony,
          the jury found [a]ppellant guilty of [IDSI], statutory
          sexual assault, aggravated indecent assault, indecent


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           assault, and corruption of minors. On April 8, 2014,
           [a]ppellant filed a motion for judgment of acquittal.
           Therein, [a]ppellant argued that the jury’s verdict was
           “against the weight and sufficiency of the evidence
           presented at trial.”     On August 22, 2014, the
           Commonwealth filed a notice of its intent to seek
           imposition of a ten-year mandatory minimum
           sentence. See 42 Pa.C.S. § 9718(a)(1) (providing
           that a person convicted of [IDSI] when the victim is
           less than sixteen years of age shall be sentenced to a
           mandatory ten-year term of imprisonment).

           . . . . The trial court . . . sentenced [a]ppellant to ten
           to twenty years’ imprisonment for [IDSI], the
           mandatory minimum sentenced prescribed by
           42 Pa.C.S. § 9718(a)(1).[Footnote 2]

                  [Footnote 2] The trial court also imposed
                  concurrent sentences of six to fourteen
                  months’ imprisonment for statutory
                  sexual assault, two to four years’
                  imprisonment for aggravated indecent
                  assault, twelve months’ probation for
                  indecent assault, and twelve months’
                  probation for corruption of minors.

Commonwealth v. Jessee, No. 1520 MDA 2014, unpublished memorandum

at *1-4 (Pa.Super. filed August 31, 2015) (citations omitted).

     Appellant filed a direct appeal of his judgment of sentence on

September 10, 2014.     On August 31, 2015, this court vacated appellant’s

judgment of sentence and remanded to the trial court for resentencing in light

of the United States Supreme Court’s decision in Alleyne v. United States,

570 U.S. 99 (2013), and its state progeny, in this case, Commonwealth v.

Wolfe, 106 A.3d 800 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016).

As noted by the previous panel on direct appeal, this court “held that section



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9718 was facially unconstitutional because the elements of the ‘proof at

sentencing’ provision required a trial judge, rather than a jury, to make factual

findings by a preponderance of the evidence, and not beyond a reasonable

doubt.” Jessee, No. 1520 MDA 2014 at *12, citing Wolfe, 106 A.3d at 805.

      The trial court resentenced appellant on October 25, 2016, to 3-6 years’

imprisonment followed by 2 years’ probation. Appellant did not file a direct

appeal from the October 25, 2016 judgment of sentence. On October 26,

2016, however, appellant filed a petition pursuant to the PCRA. The PCRA

court stayed appellant’s sentence pending the PCRA hearing on December 5,

2016. The PCRA court denied appellant’s petition after a hearing was held on

June 5, 2017.

      Appellant filed a notice of appeal to this court on July 3, 2017. On July 5,

2017, the PCRA court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely

complied on July 25, 2017.      The PCRA court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on January 18, 2018.

      Appellant raises the following two issues for our review:

            I.    Whether the PCRA court erred in not finding
                  counsel ineffective for failing to call appellant to
                  testify, which would have lent credence to the
                  victim’s recantation of her accusations?

            II.   Whether the PCRA court erred in not finding
                  counsel ineffective for failing to fully develop on
                  cross examination the victim’s reason for
                  providing false statements to police?



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Appellant’s brief at 4 (capitalization omitted).

      PCRA petitions are subject to the following standard of review:

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

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

      Under the PCRA, an individual is eligible for post-conviction relief if the

conviction was the result of “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. 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering whether counsel was

ineffective, we are governed by the following standard:



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                  [C]ounsel is presumed effective, and to
                  rebut that presumption, the PCRA
                  petitioner    must    demonstrate      that
                  counsel’s performance was deficient and
                  that such deficiency prejudiced him.
                  Strickland v. Washington, 466 U.S.
                  668, [] (1984). This Court has described
                  the Strickland standard as tripartite by
                  dividing the performance element into two
                  distinct components. Commonwealth v.
                  Pierce, [], 527 A.2d 973, 975 (Pa. 1987).
                  Accordingly, to prove counsel ineffective,
                  the petitioner must demonstrate that (1)
                  the underlying legal issue has arguable
                  merit; (2) counsel’s actions lacked an
                  objective reasonable basis; and (3) the
                  petitioner was prejudiced by counsel’s act
                  or omission.        Id.      A claim of
                  ineffectiveness will be denied if the
                  petitioner’s evidence fails to satisfy any
                  one of these prongs.

            Commonwealth v. Busanet, [], 54 A.3d 34, 45 (Pa.
            2012) (citations formatted).      Furthermore, “[i]n
            accord with these well-established criteria for review,
            [an appellant] must set forth and individually discuss
            substantively each prong of the Pierce test.”
            Commonwealth v. Fitzgerald, 979 A.2d 908, 910
            (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015), order

vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

     Appellant alleges ineffective assistance of counsel in both of his issues

on appeal. In his first issue, appellant contends that the PCRA court erred

when it did not find appellant’s trial counsel, Kevin J. Hoffman, Esq.

(“Attorney Hoffman”), ineffective for advising appellant not to testify on his




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own behalf as a means of lending credence to K.W.’s recantation of some of

her accusations against appellant. For the following reasons, we disagree.

      A defendant’s right to testify on his or her own behalf at trial is a

fundamental right guaranteed by both the United States and Pennsylvania

Constitutions. Commonwealth v. Baldwin, 8 A.3d 901, 902-903 (Pa.Super.

2010), affirmed, 58 A.3d 754 (Pa. 2012), citing Commonwealth v. Nieves,

746 A.2d 1102, 1105 (Pa. 2000); Pa. Const. Art. I, § 9; U.S. Const. amend. VI.

In the context of a claim of ineffective assistance of counsel relating to counsel

advising a criminal defendant not to testify on his or her own behalf, we are

governed by the following standard:

            The decision 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. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013), quoting

Nieves, 746 A.2d at 1104.

      In   the   instant   case,   appellant    failed   to   demonstrate    that

Attorney Hoffman interfered with his right to testify or that Attorney Hoffman

provided appellant with advice so unreasonable as to “vitiate a knowing and

intelligent decision to testify on his own behalf.” See Michaud, 70 A.3d at




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869. In fact, appellant fails to explain how Attorney Hoffman’s advice was

unreasonable. As noted by the PCRA court,

            From our reading of the PCRA hearing transcript, we
            were able to glean that, had he testified at trial,
            [a]ppellant would have offered testimony in
            agreement with the victim’s recantation. It is hard to
            divine that [a]ppellant’s testimony would have added
            anything new, or, to address [a]ppellant’s concerns,
            conveyed the whole story. It is axiomatic that a
            credible witness can galvanize the testimony of a
            comparatively weaker witness; however, the jury was
            confronted with a situation in which there was a child
            produced by [a]ppellant and the victim. The birth of
            that child allowed the jury to determine that sexual
            intercourse occurred, at a minimum, around the time
            that the victim was seventeen-and-a-half. It seems
            unlikely that a jury would have viewed [a]ppellant as
            a    credible    buttressing    witness   under    the
            circumstances. [A]ppellant not only had a great stake
            in the outcome of the case, but it was plainly obvious
            to the jury that he was guilty of the corruption of
            minors charge.          Moreover, we agree with
            Attorney Hoffman’s assessment that [a]ppellant
            testifying would have opened the door to rebuttal
            testimony from the victim’s grandmother, [E.F.]. . . .
            The Commonwealth would surely have sought to
            admit [E.F.’s] testimony regarding sexualized
            behavior she saw [a]ppellant exhibit towards the
            victim to attack any statements by [a]ppellant that his
            sexual relationship with the victim did not begin until
            she was seventeen-and-a-half and this would have
            been admissible.      Thus, the alternative strategy
            suggested, of offering [a]ppellant’s testimony, would
            not have offered a substantially greater chance of
            success and might, indeed, have harmed [appellant.]

PCRA court opinion, 1/18/18 at 9-10 (emphasis in original).           Moreover,

appellant stated to the trial court that he understood that he had the right to




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testify on his own behalf and that he nevertheless decided not to testify. (See

notes of testimony, 3/31/14 at 106-108.)

      Accordingly, we find that Attorney Hoffman had an objective, reasonable

basis in advising appellant not to testify on his own behalf given that his

testimony would involve his admitting to engaging in a sexual relationship

with his then-17-year-old stepdaughter, in addition to the fact that his

testimony would open the door for E.F.’s testimony on rebuttal. The record

also reflects that it was ultimately appellant’s decision not to testify on his own

behalf. Therefore, appellant’s first issue must fail.

      In his second issue, appellant contends that the PCRA court erred when

it did not find Attorney Hoffman to be ineffective for “failing to fully develop

on cross examination the victim’s reason for providing false statements to

police.” (Appellant’s brief at 12.) For this issue, we adopt the PCRA court’s

analysis explaining that Attorney Hoffman had a reasonable basis for declining

to further develop the victim’s reason on cross-examination for providing false

statements to the police.

            [Attorney    Hoffman]    had    [K.W.]    repeat   on
            cross-examination what she had already stated as a
            hostile witness three times on direct, which was that
            the memories of abuse were foisted upon her by
            others. We see no substantially greater chance at
            success from [a]ppellant’s suggested course of more
            probing cross-examination.

PCRA court opinion, 1/18/18 at 13.




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     Accordingly, we find that appellant failed to satisfy the second prong in

Pearce. Appellant’s second issue, therefore, must fail.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/9/2018




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