J-S38026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GARY KEITH LEHMAN

                            Appellant                 No. 1790 MDA 2014


           Appeal from the PCRA Order entered September 15, 2014
           In the Court of Common Pleas of the 41st Judicial District,
                               Perry County Branch
                Criminal Division at No: CP-50-CR-0000451-2012


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 08, 2015

        Appellant, Gary Keith Lehman, appeals from an order denying relief

under the PCRA.1 He claims the PCRA court erred in rejecting his claims of

ineffective assistance of trial counsel. We affirm, albeit for different reasons

than the PCRA court.

        In 2011, Appellant, then 21 years old, lived in Newport, Perry County.

Appellant’s 14-year-old-neighbor, S.A., alleged that he raped her three

times during July and August of that year. The incidents occurred inside of

S.A.’s house during the day, when her mother was not home. About a year

later, in July 2012, S.A. reported the sexual assaults to the Pennsylvania

____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
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State Police.    Police charged Appellant with three counts each of rape by

forcible compulsion, statutory sexual assault, aggravated indecent assault,

and indecent assault.2 The aggravated indecent assault and indecent assault

charges were age-based, i.e., they did not require proof of force or lack of

consent. At trial, Appellant denied having any sexual contact with S.A. The

jury acquitted Appellant of rape and convicted him of all other counts. On

August 2, 2013, Appellant was sentenced to an aggregate of 42 to 84

months in prison. He filed a direct appeal, but discontinued it in this Court

on November 6, 2013.

       On January 31, 2014, Appellant filed a timely first PCRA petition

raising three claims of ineffective assistance of counsel (IAC). He contended

trial counsel was ineffective for failing to request the trial court to instruct

the jury on lack of a prompt complaint by S.A.        He also contended trial

counsel was ineffective for failing to cross-examine the victim about her

purported fear of men and discrepancies between her testimony on direct

examination and prior testimony. Following a hearing at which trial counsel

and Appellant testified, the PCRA court denied post-conviction relief, and this

appeal followed. Appellant filed a concise statement as ordered. The PCRA

court issued a Pa.R.A.P. 1925(a) opinion, but cited no authority in support of

its reasons for denying relief.
____________________________________________


2
  18 Pa.C.S.A. §§ 3121(a)(1), 3122.1(a), 3125(a)(8), and 3126(a)(8),
respectively.



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     Appellant raises four assignments of error:

     1. W[h]ether the [Appellant] proved by a preponderance of the
        evidence that trial counsel unreasonably failed to request a
        [p]rompt [c]omplaint jury instruction, and thus severely
        prejudiced his defense in this matter to the point that no
        reliable adjudication [of guilt] could take place.

     2. Whether the PCRA court’s conclusion that [Appellant] did not
        prove that he was prejudiced by trial counsel’s failure to
        request a [p]rompt [c]omplaint jury instruction is erroneous
        and not supported by the evidence of record.

     3. Whether the [Appellant] proved by a preponderance of the
        evidence that trial counsel unreasonably failed to impeach the
        victim’s testimony that she is “terrified” of men with available
        witness testimony, and thus severely prejudiced his defense
        in this matter to the point that no reliable adjudication [of
        guilt] could take place.

     4. Whether the PCRA court’s conclusion that the defendant was
        not prejudiced by trial counsel’s failure to impeach the victim
        with available evidence is erroneous and not supported by
        evidence of record.

Appellant’s Brief at 3 (some quotation marks omitted).       Appellant’s four

questions presented do not correspond with the three-part argument section

of his brief. Cf. Pa.R.A.P. 2119(a). We read Appellant’s Brief as presenting

three issues for review: (1) IAC for failure to request a prompt complaint

instruction; (2) IAC for failing to impeach effectively S.A.; and (3)

cumulative prejudice from trial counsel’s combined IAC.

     “In PCRA appeals, our scope of review is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed   in   the   light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.



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2015) (en banc) (internal quotation omitted). We apply a mixed standard of

review, deferring to the PCRA court’s factual findings and credibility

determinations,      but    reviewing    de    novo   its    legal    conclusions.      Id.

Additionally, we may affirm the PCRA court on any basis supported by the

record. Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super.

2014).

       The PCRA allows relief for a petitioner who pleads and proves by a

preponderance of the evidence IAC “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). “It is well-established that counsel is presumed

effective,   and    [a     PCRA     petitioner]    bears    the      burden   of   proving

ineffectiveness.” Reyes-Rodriguez, 111 A.3d at 779-80.

       To prevail on an IAC 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. A petitioner must prove
       all three factors of the “Pierce[3] test,” or the claim fails.

Id. at 780 (internal citations omitted).           Pierce “reiterates the preexisting

three-prong test for ineffective assistance of counsel in Pennsylvania and

holds it to be consistent with the two-prong performance and prejudice test

provided     by    the     United   States     Supreme      Court     in   Strickland    v.
____________________________________________


3
    Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).



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Washington, 466 U.S. 668 (1984).” Commonwealth v. Eichinger, 108

A.3d 821, 831 (Pa. 2014) (citing Pierce, at 527 A.2d at 976–77) (parallel

citations omitted).

      To establish prejudice, a PCRA petitioner “must show that there is a

reasonable probability that the outcome of the proceedings would have been

different but for counsel’s action or inaction.” Commonwealth v. Watkins,

108 A.3d 692, 702 (Pa. 2014).     In other words, the petitioner must show

“that counsel’s ineffectiveness was of such magnitude that it ‘could have

reasonably had an adverse effect on the outcome of the proceedings.’”

Commonwealth v. Gribble, 863 A.2d 455, 472 (Pa. 2004) (quoting

Pierce, 527 A.2d at 977); accord Strickland, 466 U.S. at 692 (“[A]ny

deficiencies in counsel’s performance must be prejudicial to the defense in

order to constitute ineffective assistance under the Constitution.”). As our

Supreme Court has cautioned, prejudice under the PCRA is more exacting

than a harmless error analysis on direct appeal, in which the Commonwealth

must show the trial court error was harmless beyond a reasonable doubt.

Commonwealth v. Spotz, 84 A.3d 294, 315 (Pa. 2014).

      In his first argument, Appellant contends the PCRA court erred in

rejecting his IAC claim regarding trial counsel’s failure to request a prompt

complaint instruction. The Commonwealth concedes that Appellant’s claim

has arguable merit, and no reasonable basis exists for trial counsel’s failure

to request a prompt complaint instruction.       It contends, however, that




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Appellant did not prove prejudice. The PCRA court rejected the claim for the

same reason:

      Atlhough [t]rial [c]ounsel could not remember a specific reason
      for not requesting the [p]rompt [c]omplaint instruction, and
      therefore she could not voice a reasonable basis for that
      admission, the [c]ourt does not find that the failure to have the
      instruction given to the jury resulted in a different outcome than
      what would have been reached if it had been given, has arguable
      merit [sic]. When reviewing the verdict reached by the jury, it is
      apparent that the victim’s credibility was questioned and taken
      into consideration by the jury. The [Appellant] was acquitted on
      charges of rape, which were the only charges that included an
      element of force. The jury found the [Appellant] guilty of those
      charges which were based on [sexual] contact alone, not force.
      The [v]ictim testified that she was forced to have sexual contact
      with the [Appellant], which it appears the jury did not believe.

PCRA Court Rule 1925(a) Opinion, at 2 (un-paginated).             Although we

disapprove of the underlying reasoning, we agree with the PCRA court’s

conclusion. Appellant’s IAC claim fails, because he did not prove prejudice.

      A prompt complaint instruction charges the jury that it may consider a

delay in reporting a sexual assault to evaluate the victim’s credibility, and to

assess whether the victim consented or whether the assault occurred at all.

See Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).

The suggested standard prompt complaint instruction is as follows:

      1. Before you may find the defendant guilty of the crime
         charged in this case, you must be convinced beyond a
         reasonable doubt that the act charged did in fact occur and
         that it occurred without [name of victim’s] consent.

      2. The evidence of [name of victim’s] [failure to complain]
         [delay in making a complaint] does not necessarily make [his]
         [her] testimony unreliable, but may remove from it the
         assurance of reliability accompanying the prompt complaint or

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        outcry that the victim of a crime such as this would ordinarily
        be expected to make. Therefore, the [failure to complain]
        [delay in making a complaint] should be considered in
        evaluating [his] [her] testimony and in deciding whether the
        act occurred [at all] [with or without [his] [her] consent].

     3. You must not consider [name of victim’s] [failure to make]
        [delay in making] a complaint as conclusive evidence that the
        act did not occur or that it did occur but with [his] [her]
        consent. [name of victim’s] failure to complain [at all]
        [promptly] [and the nature of any explanation for that failure]
        are factors bearing on the believability of [his] [her]
        testimony and must be considered by you in light of all the
        evidence in the case.

Pa. Sugg. Stand. Jury Instr. (Crim.) 4.13A (2d ed. rev. 2012). As noted, the

Commonwealth concedes the merit of a prompt complaint instruction.

Moreover, trial counsel essentially conceded that a prompt complaint

instruction would have been beneficial, and she did not give a reason for not

requesting one. See N.T. PCRA Hearing, 5/16/15, at 8-11.

     The PCRA court found Appellant could not show prejudice because of

the jury’s acquittal of the forcible rape charges. It reasoned that the jury,

even without a prompt complaint instruction, evaluated S.A.’s credibility,

and apparently rejected her claim of forcible rape.    This partial acquittal,

however, actually weighs in favor of prejudice. As Appellant contends, the

jury—properly instructed—could have disbelieved also S.A. regarding the

disputed elements of the other offenses—whether any sexual intercourse,

penetration, or indecent contact occurred between her and Appellant.

     We also agree with Appellant that the PCRA court employed the wrong

legal standard to evaluate prejudice.     In rejecting Appellant’s claim, the

PCRA court ruled he could not show a different outcome, i.e., acquittal,

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would have resulted if trial counsel requested, and the trial court gave, a

prompt complaint instruction. See PCRA Court Rule 1925(a) Opinion, at 2

(un-paginated). Under the correct standard, a PCRA petitioner must show a

reasonable probability that the result would have been different.         See

Watkins, 108 A.3d at 702. Nevertheless, our analysis of Appellant’s first

issue does not end here.

      We hold that Appellant cannot show prejudice. Appellant still was able

to cross-examine S.A. on her failure to promptly report the assaults.      He

argued to the jury that S.A. was not credible, and the trial court gave a

general instruction on how to evaluate witnesses’ credibility.   Further, the

trial court did not preclude cross-examination of S.A., or argument on, the

lack of a prompt complaint. The record shows that trial counsel questioned

S.A. regarding her failure to tell her mother, a friend, or police immediately

or soon after each assault.    See N.T. Trial, 4/22/13, at 41-42, 47, 50-52.

Trial counsel also argued to the jury that it should reject S.A.’s testimony

because, inter alia, she delayed in reporting the assaults. See id. at 89-90.

      We acknowledge Appellant’s argument that the jury could have found

the victim credible despite impeachment on cross-examination and it could

have disregarded trial counsel’s closing argument, whereas it was required

to follow jury instructions.   Appellant, however, overlooks the trial court’s

general charge on credibility. See N.T. Trial, 4/22/13, at 106-07. Thus, the

jury was instructed on how to evaluate S.A.’s testimony, and trial counsel

told the jury not to believe her because she waited almost a year to report

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the sexual assaults. We have held, albeit in the context of harmless error on

direct appeal, that a general charge on credibility alleviates any prejudice

caused by the lack of a prompt complaint instruction. See Sandusky, 77

A.3d at 668-69. Sandusky supports our decision here. We find that the

trial court’s instruction, as a whole, prevents Appellant from carrying his

burden on prejudice.

      The PCRA provides a remedy only where IAC “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). “This requires

showing that counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.”   Strickland, 466 U.S. at 687.

The PCRA’s standard flows from the general principal that the United States

Constitution entitles a defendant to a fair trial, not a perfect one.       See

Commonwealth v. Robinson, 877 A.2d 433, 443 (Pa. 2005); accord

Ross v. Oklahoma, 487 U.S. 81, 91 (1988). Appellant cannot meet that

standard here. Consequently, we determine that he is not entitled to relief

on his first IAC claim.

      In his second argument, Appellant contends trial counsel was

ineffective for failing to rebut S.A.’s testimony that she was “terrified of

guys” with evidence that S.A. was kissing a teenage boy outside of the

courtroom during a recess at trial. At trial, S.A. testified about the effects of

the sexual assaults on her as follows:

      Q. Did this have any kind of long-term effects on you?

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      A. Yes.

      Q. What effects did it have?

      A. I’ve been diagnosed with PTSD. I have nightmares. I have
      flashbacks. I’m on medication because of this. I am afraid all
      the time. I’m terrified to sleep with my door open. I’m terrified
      of doors opening without me knowing. I’m terrified of guys. I’m
      terrified all the time.

N.T. Trial, 4/22/13, at 32-33.

      At the PCRA hearing, Appellant, his fiancée, Appellant’s mother, and

his fiancée’s mother testified that they saw S.A. holding hands with, and

kissing and groping, a teenage boy outside of the courthouse during a recess

in Appellant’s trial. See N.T. PCRA Hearing, 5/16/14, at 31-32, 45-46, 53-

54, 60-61.      When these witnesses tried to bring this incident to trial

counsel’s attention, trial counsel said that she could not use it to impeach

S.A. Id.

      The PCRA court addressed the claim as follows:

      The charges of which the [Appellant] was convicted all contained
      an age element. Consent or non-consent was not an issue
      before the jury for those charges. Whether or not the [v]ictim is
      [sic] “terrified of guys” is irrelevant[,] as the [v]ictim’s age at
      the time of the assaults, i.e.[,] 14, was the relevant factor.
      [Appellant] was acquitted of the rape charge[s], which did
      contain an element of force. The [v]ictim could have consented
      to the sexual activities[,] and the resulting verdicts could still
      have been reached.

      The [c]ourt finds that there was no prejudice to the [Appellant]
      by [t]rial [c]ounsel failing to use the [v]ictim’s actions during
      trial in an attempt to impeach her credibility. That omission did
      not have an adverse effect on the outcome of the trial for the
      reasons stated above.

PCRA Court Opinion, 9/15/14, at 3 (un-paginated).



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      We disagree with the PCRA court’s analysis. Again, to prove prejudice,

Appellant was not required to show an actual adverse effect by trial

counsel’s deficient performance. Rather, he needed to show a reasonable

probability that trial counsel’s failure to use available cross-examination

material affected the outcome. See Watkins, 108 A.3d at 702.

      It is also true that S.A.’s purported fear of men was not an element of

the age-based sex crimes of which the jury convicted Appellant.          Fear of

men is not a material element of any sex crime, including the forcible-rape

charges of which the jury acquitted Appellant. Appellant does not argue that

trial counsel should have introduced the evidence to negate proof of the

crimes.   Rather, he contends trial counsel should have used it to impeach

S.A. by testing her credibility.      Without expressing an opinion as to

prejudice, we conclude that this issue lacks arguable merit.

      A witness cannot be contradicted on a collateral matter.                See

Commonwealth v. Holder, 815 A.2d 1115, 1119 (Pa. Super. 2003).                 As

our Supreme Court long ago explained,

      There seems to be considerable misunderstanding of the rules of
      evidence relating to the contradiction of witnesses.               No
      witness can be contradicted on everything he testifies to in
      order to ‘test his credibility’. The pivotal issues in a trial cannot
      be ‘side-tracked’ for the determination of whether or not a
      witness lied in making a statement about something which has
      no relationship to the case on trial. The purpose of trials is
      not to determine the ratings of witnesses for general veracity. A
      witness can be contradicted only on matters germane to the
      issue trying. There is no rule more firmly established than this:
      ‘No contradiction shall be permitted on collateral matters.’



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Commonwealth v. Petrillo, 19 A.2d 288, 295 (Pa. 1941) (emphases in

original); see also Commonwealth v. Johnson, 638 A.2d 940, 943 (Pa.

1994) (“A collateral matter is one which has no relationship to the matter on

trial.”).

       Here, Appellant’s proposed evidence could have discredited S.A.’s

statement that she is “terrified of guys” because of Appellant’s assaults.

S.A.’s purported fear of men, however, was collateral to the material issues

before the jury: whether Appellant forcibly raped S.A., and whether he had

sexual intercourse or sexual contact with her.

       The only permissible use of Appellant’s proposed testimony was

impeachment. In context, the collateral nature of this evidence is apparent.

S.A. made the statement in response to a question about the effects of the

sexual assaults, see N.T. Trial, 4/22/11, at 32-33, not regarding whether

sexual contact between her and Appellant occurred, or whether he forcibly

raped her.

       Appellant’s proposed evidence was collateral, and the evidence

therefore should have been excluded at trial. Because trial counsel cannot

be found ineffective for failing to advance a meritless argument, Appellant’s

second IAC claim fails.

       Finally, Appellant argues that he suffered cumulative prejudice from

trial counsel’s combined errors.   In a cumulative prejudice claim, a PCRA

petitioner accumulates multiple claims of arguable merit that do not

individually meet the standard for prejudice.     See Commonwealth v.

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Rivera, 108 A.3d 779, 818 (Pa. 2014). We do not reach the merits of this

claim.

      First, Appellant did not plead a cumulative-prejudice claim in his

counseled PCRA petition, i.e., he never raised the claim before the PCRA

court. Failing to do so bars appellate review, because a litigant cannot raise

a claim for the first time on appeal.          Pa.R.A.P. 302(a); see also

Commonwealth v. Johnson, 33 A.3d 122, 126 (Pa. Super. 2011).

Second, Appellant did not include a cumulative prejudice argument in his

concise statement of errors complained of on appeal. Issues not included in

a concise statement are waived. See Pa.R.A.P. 1925(b)(4)(vii).          Third,

Appellant did not include a cumulative prejudice argument in his statement

of questions involved.     See Pa.R.A.P. 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”).   For these reasons, we cannot address the

merits of Appellant’s final argument.

      In sum, Appellant did not show that trial counsel’s failure to request a

prompt complaint instruction prejudiced him.         His ineffectiveness claim

regarding cross-examination of the victim has no arguable merit.           His

cumulative prejudice claim is waived. Therefore, we affirm the PCRA court’s

order denying relief, though on different grounds.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




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