J-S53021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellee

                   v.

WILLIAM D. CLARK

                        Appellant                    No. 2297 EDA 2016


                Appeal from the PCRA Order July 13, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003631-2010


BEFORE: BENDER, P.J.E., OLSON, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                           FILED OCTOBER 20, 2017

      Appellant, William D. Clark, appeals from the order entered on July 13,

2016, dismissing his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      Appellant was arrested in January 2010 and the Commonwealth later

charged him with committing rape, involuntary deviate sexual intercourse,

and related offenses against his niece, S.P. (hereinafter “Complainant

Niece”), and, at a separate information, with committing aggravated

indecent assault and related offenses against one of his daughters, S.C.

(hereinafter “Complainant Daughter”). On January 3, 2011, the trial court

granted   the   Commonwealth’s      motion   to    consolidate   the   separate

informations for trial, pursuant to Pennsylvania Rule of Criminal Procedure

582(A)(1)(a). Trial Court Order, 1/3/11, at 1.
J-S53021-17



         The case proceeded to a jury trial. Prior to opening statements, the

trial court informed the jury that “[s]tatements or arguments made by

counsel do not constitute evidence.”       N.T. Trial, 6/19/13, at 30.   The trial

court also informed the jury:

           Opening statements, as with any other statements made by
           counsel, do not constitute evidence and you are not to
           consider these opening statements as established facts.
           The only purpose of an opening statement is to give you a
           general outline of what the case is about so that you will
           have a better understanding about how each piece of
           evidence fits in subject, of course, to your evaluation as to
           its credibility, its accuracy and the weight to be given to it.

           You are not to conclude that counsel will necessarily be able
           to prove what they say they expect to prove nor that the
           Court will necessarily permit such evidence to be
           introduced.


Id. at 33-34.

         During the Commonwealth’s opening statement, the Assistant District

Attorney (“ADA”) summarized the evidence that she intended to introduce at

trial.    The ADA informed the jury that it would hear testimony from

Complainant Daughter, Complainant Daughter’s sisters (N.C. and E.C.), and

Complainant Niece.         As to the anticipated testimony of Complainant

Daughter and Complainant Daughter’s sisters, the ADA declared:

           As these young women were growing up, their mom and
           [Appellant’s] wife . . . worked full time to provide for the
           family. She often had the 2:00 p.m. to 10:00 p.m. shift.
           So after school when the kids were doing their homework
           and getting ready for bed, . . . [Appellant] was the one in
           charge of making sure all those things were done. And
           [Appellant] had certain rules.

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       One of those rules you will hear throughout the course of
       this trial involved bathing.      Specifically, each of his
       daughters will testify that when they were finished washing
       themselves, they were required to call [Appellant], their
       dad, into the bathroom and they would have to stand there
       completely naked while [Appellant] checked them. Now,
       checking them involves several things. It involved him
       inspecting their bodies to make sure they cleaned
       themselves properly. Specifically[,] he would inspect their
       breasts and vaginal areas even after they had gone through
       puberty and were fully developed. . . .

       You’ll hear from [Complainant Daughter].          She’s the
       youngest daughter. She’ll tell you that she was about 13
       when she said to [Appellant], her dad, you know, this is
       really making me uncomfortable and she’ll tell you that she
       was already fully developed at that point. She had been
       through puberty. She said, dad, I don’t like the way this
       feels when this happens. And he told her, you know what,
       I’m your dad. You shouldn’t feel like that, and he continued
       to check her.

       She’ll tell you that he would inspect her breasts, her
       buttocks and her vaginal area. He would take his fingers in
       the wash cloth and actually penetrate her vagina with the
       wash cloth himself during this checking procedure and after
       the bath, he would call her into his bedroom and take lotion
       and while she’s still fully naked apply it to her breasts and
       her buttocks.

       You’ll also meet [Appellant’s] other two daughters, [N.C.]
       and [E.C.]. They’re going to tell you the exact same thing
       about this bathing and checking procedure and how if they
       didn’t comply with these rules, they’d get in trouble. They’d
       be on punishment.

       Now, [E.C.] will also tell you that [Appellant] did some other
       things [that] made her uncomfortable. She’ll tell you that
       sometimes her dad would say things that made her feel that
       way, made her feel uneasy. She remembers one time
       where [Appellant] would make a comment like, I’m a man.
       What do you think all you girls going around here teasing
       me like this? She remembers another time saying, hey dad,

                                   -3-
J-S53021-17


        “[y]ou look really nice today” and he responded to her,
        “what are you going to do about it?”

        And she’ll even tell you one day she was about 16. She was
        home sick from school. She’s [lying] in bed and watching
        TV and [Appellant] comes in to check on her. First, he
        asked her, hey[, how] are you feeling? He starts rubbing
        her back. He [lies] down behind her in the bed so that his
        chest is to her back and they’re pressed up against one
        another and she’ll tell you she could actually feel his erect
        penis against her buttocks. And he reached around and
        started to rub her chest, stomach and reached down over
        the vaginal area over the clothes, when he got up, got out
        of the bed, walked out of the room and left.

N.T. Opening Statements, 6/19/13, at 4-8 (some internal capitalization

omitted).

     With respect to Complainant Niece, the ADA declared during her

opening statement:

        You’re going to meet [Complainant Niece], too.
        [Complainant Niece] is [Appellant’s] and [Appellant’s wife’s]
        niece and when she was 15 years old, that summer she
        went to live with [Appellant] and his wife. . . . She’s going
        to tell you in very vivid detail what happened to her when
        she was living with this family. She’s going to tell you how
        one morning she woke up and her eyes weren’t open yet
        but she could feel the sun coming through the window on
        her face.

        She remembers exactly what she was wearing.               She
        remembers that she was [lying] face down on her stomach
        and [Appellant] came in the room. At this point nobody
        else was home in the household. Mom was at work. Two
        kids [] at their [grandmother’s], one was [at] choir practice.
        So it’s just [Complainant Niece] and [Appellant] alone in the
        house. And he sits down next to her. Initially innocent.
        Starts to rub her back and he says, hey, did you sleep well?
        Did you get a good night’s sleep? He continues to rub her
        back. Then he starts to rub her butt. She’s still on her
        stomach. He takes her by the waist and pulls her to the


                                    -4-
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       edge of the bed and he pulls down his underwear – her
       underwear, excuse me, and he forces his penis inside her.
       And she’s lying there and she is in shock. This is basically
       dad to her, too.

       And after he was finished, she [lay] there and she’s shaking
       and she’s in shock. She doesn’t know what to do. And she
       tells her cousins later on, you know, from now on while I’m
       sleeping in the morning, if I’m sleeping, wake me up. I’ll
       come with you to choir practice. Just wake me up. Don’t
       let me keep sleeping. But she doesn’t tell them. She
       doesn’t put into words what their dad just did to her. So
       her cousins don’t realize why she wants to be woken up, so
       they forget.

       So the very next morning she’s sleeping again. Again, [one
       of Appellant’s daughter’s] is at choir practice. The two
       youngest girls are at grandmom’s house.            It’s just
       [Complainant Niece] and [Appellant] alone in the house.
       And this time he wakes her up. This time he pulls down his
       pants and exposes his penis. He takes her head and forces
       it down to his penis. He won’t let up. He’s forcing it down,
       forcing it down. She’s trying to get away. He’s able to
       [get] his penis inside her mouth past her lips when she’s
       clenching her teeth. She’s clenching them and clenching
       them trying to prevent his penis from getting any further in
       her mouth.

       When he was finishing having his way with her that time,
       she runs up the street to the church where [] her cousin[] is
       finishing choir practice. She’s sobbing and [her cousin]
       looks at her and says, what’s wrong? What happened to
       you? What’s going on? She can’t bring herself to put into
       words what happened.

       And so when they go home and [Appellant’s wife] comes
       home, she can’t bring herself to tell [Appellant’s wife] what
       her husband did to her. And so she tells [Appellant’s wife],
       you know what? I don’t want to live here anymore. Send
       me somewhere else. Send me anywhere else. Send me to
       DHS. [Complainant Niece] is going to tell you she would
       have rather lived in the system and lived anywhere else
       than to spend another moment with [Appellant].


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N.T. Opening Statements, 6/19/13, at 8-10 (some internal capitalization

omitted).

       The ADA concluded her opening statement by summarizing the crimes

asserted against Appellant:

         [W]ith respect to [Complainant Niece], the crimes are rape
         for the allegation that he forced his penis inside her vagina.
         Involuntary deviate sexual intercourse, which is just a long
         term for oral sex, because he forced his penis in her mouth,
         along with sexual assault and unlawful contact with a minor.

         For [Complainant Daughter,] he’s charged with indecent
         assault of a child under 13, endangering the welfare of a
         child and unlawful contact with a minor.

         Now, even though you don’t have to render a verdict with
         respect to [N.C.] and [E.C.], you will hear from them as
         well. And you’ll hear from them and you’ll hear their
         testimony as a way to help you understand [Appellant’s]
         intent, his motive, his [M.O.], his plan and that will help you
         understand what life was like for these girls and the way
         that [Appellant] acted.

Id. at 11.

       During the evidentiary portion of the trial, the Commonwealth

presented the testimony of Complainant Daughter and her sisters, N.C. and

E.C.   Further, Complainant Daughter and her sisters testified consistently

with the ADA’s representation of their testimony, as made in the ADA’s

opening statement. See N.T. Trial, 6/20/13, at 13-17, 22-24, 31, and 34

(regarding N.C.’s testimony); N.T. Trial, 6/20/13, at 43-47 and 51-52

(regarding E.C.’s testimony); and, N.T. Trial, 6/20/13, at 85-89, 91-97, and

107 (regarding Complainant Daughter’s testimony).



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       During Appellant’s cross-examination of Complainant Daughter and her

sisters, Appellant’s counsel postulated that Appellant’s bathing ritual and his

actions in that regard were done not to arose sexual desire in Appellant, but

were done for purely “hygienic” reasons – where Appellant was merely

“checking [his daughters] to make sure [they] were clean.” See, e.g., N.T.

Trial, 6/20/13, at 34-35, 57-58, and 98.             In furtherance of this defense,

Appellant’s counsel brought forth testimony from Complainant Daughter or

her sisters that:     during the bathing ritual, Appellant was always clothed;

Appellant never said anything of a sexual nature during the bathing ritual;

Appellant’s actions were not secret and the bathing ritual occurred while his

wife and guests were present in the house; and, while the ritual was

occurring, all three sisters believed that the purpose of the ritual was simply

“to make sure [they] were clean.”              See, e.g., N.T. Trial, 6/20/13, at 26,

31-32, and 34-35 (regarding N.C.’s testimony); N.T. Trial, 6/20/13, at 58,

59, and 60 (regarding E.C.’s testimony); N.T. Trial, 6/20/13, at 97 and 98

(regarding Complainant Daughter’s testimony).

       At the beginning of the third day of trial, the ADA informed Appellant

and the trial court that she was “not going to be able to proceed with” the

case related to Complainant Niece.1             N.T. Trial, 6/21/13, at 4.   Appellant

____________________________________________


1 After the trial court granted Appellant’s motion for judgment of acquittal,
the ADA informed the trial court that she was prepared to call a witness who
would testify that Complainant Niece could not testify at trial because “she’s
suffering from severe panic attacks, the emotional distress, that she just
(Footnote Continued Next Page)


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then moved for, and the trial court granted, a judgment of acquittal on the

charges related to Complainant Niece.           Id. at 4-5.   Afterwards, Appellant,

the ADA, and the trial court spoke about how to inform the jury that it would

not be     hearing    any evidence       relating   to   Complainant Niece.     The

conversation proceeded as follows:

         [ADA McNabb]: I would ask or ask the Court how we want
         to handle it with the jury. Should we just tell them they’re
         not to consider anything relating to her?

         [Trial Court]: Well, I mean, they don’t have any evidence
         with regard to her. So they will be instructed that as to the
         charges and the only complainant they’re dealing with at
         this point in time is the other complainant.

         [ADA McNabb]: Okay.

         [Appellant’s Counsel]: And, Your Honor, in my closing may I
         address the issue of what she argued she was going to
         present and that she has not presented because that was
         part of my opening. Not to belabor the issue but I’m just –

         [ADA McNabb]: I think with respect to [Complainant
         Daughter] if she feels – if counsel feels I have not met my
         burden, that’s fair game. But without me being able to put
         on evidence as to why she’s not testifying from the rest of
         her family, it’s a little unfair to say she can’t prove it. You
         know the jury is left wondering and speculating.


(Footnote Continued) _______________________

can’t relive it, that she’s terrified of testifying again.” N.T. Trial, 6/21/13, at
13-14; see also N.T. Sentencing, 10/1/13, at 23 (“I would just remind the
[trial c]ourt that we started out with mandatory minimums and we started
out with felony in the first degree. And the reason we could not proceed
with those charges was because of the dramatic effect those crimes had on
[Complainant Niece]. She had a panic attack so bad that we couldn't even
proceed with her testimony”).



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              I think the best way to handle it is to instruct them that
              you’re not to wonder or speculate or concentrating on
              the evidence you didn’t hear.

        [Appellant’s Counsel]: Well, can I say this? I’m not making
        reference to the particular complainant.         I’m making
        reference to her arguments that she made in her opening
        with regards to you’re going to hear this home wasn’t safe.
        There was penetration. They didn’t hear any of that. That’s
        my argument. I’m not going to make reference to this
        particular complainant. But to some of the arguments that
        she made to the jury what she promised to deliver that she
        has not delivered I would like to be able to address.

        [Trial Court]: Let me think about it.

Id. at 5-6.

      The trial court ruled that, during closing argument, Appellant’s counsel

was permitted to “comment in general on the Commonwealth’s failure to

meet its burden but we’re not going to get into the specifics.”      Id. at 17.

Further, as is evident from the above, Appellant’s counsel did not request a

mistrial or a specific curative instruction related to the Commonwealth’s

opening statement, where the ADA spoke about Appellant’s alleged rape and

involuntary deviate sexual intercourse of Complainant Niece. See id. at 5-6.

      The trial court did not specifically instruct the jury on anything related

to what the ADA declared, in her opening statement, as to Complainant

Niece. However, during the trial court’s charge to the jury, the trial court

again informed the jury that the verdict must be based upon the evidence

presented and not upon the statements or arguments of counsel. See, e.g.,

id. at 21-22.




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     During Appellant’s closing argument, Appellant’s counsel reminded the

jury that – in contravention of the ADA’s opening statement – the

Commonwealth had failed to present any evidence related to Complainant

Niece. Appellant’s counsel argued to the jury:

        As you recall, when I spoke to you in my opening, I
        indicated to you what the Commonwealth said to you was
        not in evidence. I also told you to keep an open mind
        because I indicated to you that everything the
        Commonwealth said to you would have to be proven by the
        witnesses who took the stand.

        You've heard all the evidence. Do you recall in the
        Commonwealth's opening where she described how these
        children you were going to hear they were feeling unsafe at
        home. You were going to hear about this rape, this
        penetration and all of these things.     That's what the
        Commonwealth told you she was going to prove to you.

        What she proved to you was what you heard on the witness
        stand. Nothing that she said to you in her opening is
        admitted into evidence. You are the fact finders and that's
        why I asked you at the beginning of this case to keep an
        open mind, because clearly her opening arguments to you
        had much more than what she brought to you in this
        courtroom. So I'm now going to talk to you about the
        evidence that she brought to you in this courtroom because
        that's the only thing that you are to consider when you go
        back to deliberate. It's not what she said. It's not what I
        said. It's what the witnesses said. You are the fact finders.
        You have to make the determination what happened in this
        case. So let's talk about the [] evidence now that you []
        have the evidence. . . .

Appellant’s Closing Argument, 6/21/13, at 5-6.




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        The jury found Appellant guilty of indecent assault of a child less than

13 years of age, endangering the welfare of a child, and unlawful contact

with a minor.2 On October 1, 2013, the trial court sentenced Appellant to

serve an aggregate term of 40 months to ten years in prison, followed by

seven years of probation, for his convictions. N.T. Sentencing, 10/1/13, at

36-37. Appellant did not file a direct appeal from his judgment of sentence.

        On July 31, 2014, Appellant filed a timely, pro se PCRA petition. The

PCRA court appointed counsel to represent Appellant during the proceedings

and, on March 14, 2016, counsel filed an amended PCRA petition on

Appellant’s behalf.     See Amended PCRA Petition, 3/14/16, at 1-3.      Within

the amended petition, Appellant claimed that trial counsel was ineffective for

failing to “move for a mistrial or other instruction from the judge,” after the

Commonwealth informed the trial court that it could not proceed on the

charges related to Complainant Niece and after the trial court granted

Appellant’s motion for a judgment of acquittal on those charges. Id. at 3.

Specifically, Appellant declared:

          the trial in question involved the joinder of two separate
          cases . . . involving two separate complainants
          ([Complainant Daughter and Complainant Niece]). During
          opening statements, the prosecutor made detailed
          allegations about an indecent assault alleged to have been
          committed against [Complainant Daughter] and an alleged
          rape committed against [Complainant Niece]. [Complainant
          Niece] never testified at trial and the Commonwealth never
____________________________________________


2   18 Pa.C.S.A. §§ 3126(a)(7), 4304(a), and 6318(a)(1), respectively.



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          offered any evidence about this offense. As a result, a
          judgment of acquittal was ultimately granted as to [the
          charges related to Complainant Niece]. Notwithstanding the
          jury’s receipt of extremely prejudicial information, trial
          counsel did not move for a mistrial or other instruction
          from the judge. As a result, there are serious doubts that
          [Appellant] actually received a fair trial.

Id.

      On June 10, 2016, the PCRA court provided Appellant with notice that

it intended to dismiss the PCRA petition in 20 days, without holding a

hearing. See PCRA Court Order, 6/10/16, at 1; Pa.R.Crim.P. 907(1). The

PCRA court finally dismissed Appellant’s PCRA petition on July 13, 2016 and

Appellant filed a timely notice of appeal.    Appellant raises two claims on

appeal:

          1. Whether the PCRA court erred when it dismissed
          [Appellant’s] petition without first holding an evidentiary
          hearing on the factual dispute(s) noted by the
          Commonwealth in its motion to dismiss?

          2. Whether the PCRA court erred when it dismissed
          [Appellant’s] petition as meritless where [Appellant] raised
          a meritorious claim of ineffective assistance of counsel in
          connection with his attorney’s election against moving for a
          mistrial after the jury heard extensive opening remarks
          pertaining    to   an   unsubstantiated    rape   and    the
          Commonwealth failed to offer any evidence of the same
          during trial?

Appellant’s Brief at 8 (some internal capitalization omitted).

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

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

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

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enumerated circumstances is the “[i]neffectiveness 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).

     Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”      Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).         To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

        (1) his underlying claim is of arguable merit; (2) the
        particular course of conduct pursued by counsel did not
        have some reasonable basis designed to effectuate his
        interests; and, (3) but for counsel’s ineffectiveness, there is
        a reasonable probability that the outcome of the challenged
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court

has explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.              See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted
        as true, do not establish the underlying claim . . . , he or
        she will have failed to establish the arguable merit prong
        related to the claim”). Whether the facts rise to the level of
        arguable merit is a legal determination.

        The test for deciding whether counsel had a reasonable
        basis for his action or inaction is whether no competent
        counsel would have chosen that action or inaction, or, the
        alternative, not chosen, offered a significantly greater
        potential chance of success. Counsel’s decisions will be
        considered reasonable if they effectuated his client's
        interests.   We do not employ a hindsight analysis in


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         comparing trial counsel's actions with other efforts he may
         have taken.

         Prejudice is established if there is a reasonable probability
         that, but for counsel’s errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

internal quotations and citations omitted). “A failure to satisfy any prong of

the test for ineffectiveness will require rejection of the claim.” Id.

      Moreover, we note that a PCRA petitioner is not automatically entitled

to an evidentiary hearing on his petition. Specifically, a PCRA petition may

be dismissed without a hearing if the PCRA court “is satisfied from [its

review of the petition] that there are no genuine issues concerning any

material fact and that the [petitioner] is not entitled to post-conviction

collateral   relief,   and   no   purpose   would   be   served   by   any   further

proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA petition raises

material issues of fact, the PCRA court “shall order a hearing.” Pa.R.Crim.P.

908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision to dismiss

a petition without a hearing, an appellant must show that he raised a

genuine issue of fact which, if resolved in his favor, would have entitled him

to relief, or that the court otherwise abused its discretion in denying a

hearing.”     Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011)

(internal quotations and citations omitted).




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       On appeal, Appellant claims that the PCRA court erred when it

dismissed his petition without holding a hearing.      According to Appellant,

there is a genuine issue of material fact that his trial counsel was ineffective

for failing to request a mistrial after it was discovered that – in contravention

of the ADA’s declarations in her opening statement – Complainant Niece

refused to testify and the Commonwealth presented no evidence related to

the alleged rape or involuntary deviate sexual intercourse of Complainant

Niece.3 We disagree with Appellant.

       “A trial court may grant a mistrial only where the incident upon which

the motion is based is of such a nature that its unavoidable effect is to

deprive the defendant of a fair trial by preventing the jury from weighing

and rendering a true verdict.”         Commonwealth v. Bryant, 67 A.3d 716,

728 (Pa. 2013) (internal citations and corrections omitted). “A mistrial is an

extreme remedy that is required only where the challenged event deprived

the accused of a fair and impartial trial.” Commonwealth v. Smith, 131

A.3d 467, 474–475 (Pa. 2015) (internal quotations and citations omitted).

       As our Supreme Court has held:
____________________________________________


3 Within Appellant’s brief to this Court, Appellant argues only that counsel
was ineffective for failing to request a mistrial. See Appellant’s Brief at 8-
40. Therefore, Appellant has waived any claim that counsel was ineffective
for failing to request a curative instruction. Commonwealth v. Spotz, 716
A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme Court] has held
that an issue will be deemed to be waived when an appellant fails to
properly explain or develop it in his brief”).




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        Remarks in a prosecutor's opening statement must be fair
        deductions from the evidence which [s]he in good faith
        plans to introduce and not mere assertions designed to
        inflame the passions of the jury. The prosecution is not,
        however, required to prove conclusively all statements
        made during the opening [statement]. As long as there is a
        good faith and reasonable basis to believe that a certain fact
        will be established, reference may properly be made to it
        during the opening [statement].        Even if an opening
        [statement] is improper, relief will be granted only where
        the unavoidable effect is to so prejudice the finders of fact
        as to render them incapable of objective judgment.

Commonwealth v. Jones, 610 A.2d 931, 938-939 (Pa. 1992).

      In this case, Appellant admits that, when the ADA gave her opening

statement, the ADA had a good faith belief that she would call Complainant

Niece as a witness at trial and that Complainant Niece would testify

consistently with the ADA’s representations, as made in the opening

statement. See Appellant’s Brief at 21 n.4 and 27 n.5. Therefore, to the

extent Appellant bases his ineffective assistance claim upon an allegation of

prosecutorial misconduct, Appellant’s ineffective assistance claim fails, as

the underlying claim lacks arguable merit.     Jones, 876 A.2d at 385 (“if a

petitioner raises allegations, which, even if accepted as true, do not establish

the underlying claim . . . , he or she will have failed to establish the arguable

merit prong related to the claim”).

      Nonetheless, Appellant claims on appeal that – even though the ADA

acted in good faith during her opening statement – counsel was still

ineffective for failing to request a mistrial when Complainant Niece refused

to testify and a judgment of acquittal was entered on the charges relating to


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Complainant Niece.      Appellant claims that the “subsequent, unforeseen

events” that occurred in this case necessitated a mistrial because “the jury

heard the [ADA] describe the lurid details of an alleged rape during [her]

opening statement” and, yet, “[n]o witness was presented to establish these

allegations during trial.”   Appellant’s Brief at 21.   According to Appellant,

when the jury heard about the alleged rape he committed against

Complainant Niece, the jury was prejudiced against him in regard to the

charges related to Complainant Daughter – and in regard to his defense that

the bathing ritual was not sexual, but was merely hygienic in nature.

      “Courts are hesitant to grant a motion for a mistrial when the conduct

complained of was not the product of the court, counsel, or the parties.”

Commonwealth v. Metzer, 634 A.2d 228, 232 (Pa. Super. 1993) (internal

quotations and citations omitted).     Nevertheless, we recognize that “some

remarks [] in an opening or closing statement could be so prejudicial that a

finding of error, or even constitutional error, would be unavoidable.”

Frazier   v.   Cupp,   394    U.S.   731,   736   (1969).    For   example,   in

Commonwealth v. Wilson, 402 A.2d 1027 (Pa. 1979), the defendant was

on trial for murder and, during the opening statements, the Commonwealth

“told the jury of [the defendant’s] incriminating statements following his

arrest and quoted from the [defendant’s] written [confession].” Id. at 1028.

However, the Commonwealth did not introduce the defendant’s confession

into evidence during the jury trial. Id.




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     On appeal, the defendant claimed that the reference to the confession

during opening statements deprived him of a fair trial.           Id.   The

Commonwealth countered by arguing that “the assistant district attorney

was acting in good faith during his opening presentation to the jury and

intended as of that moment to make evidentiary use of [the defendant’s]

confession, but changed his mind as the trial progressed.”      Id. at 1029

(internal quotations omitted). The Pennsylvania Supreme Court agreed with

the defendant and held that, even if the Commonwealth acted in good faith

during the opening statement, the Commonwealth’s reference to the

confession during opening statements deprived the defendant of a fair trial

and, thus, entitled the defendant to a new trial.    Id.   The Wilson Court

explained:

        If a confession is introduced into evidence at trial, the
        accused has the right to cross-examine those who verify it
        as to the circumstances and contents.          He may also
        question its accuracy and even deny making it. Here, [the
        defendant] was denied the opportunity of making any
        inquiry as to the confession, its contents or circumstances
        even though the jury was effectively made aware that he
        had confessed and that he had “signed a written confession,
        signed it on each and every page of the confession, and his
        father signed the confession at the end.” Additionally, the
        jury was told by the assistant district attorney that [the
        defendant] had lied and tried to mislead the police as to the
        gun. All of this was without support in the record.

        The most devastating evidence against one accused of
        crime is a confession or admission of guilt. This case is no
        exception. Even instructions such as were given here by
        the court to the jury cautioning that they should dismiss the
        statement from “your mind” and let it not “enter into your
        deliberations” could not erase the impact of having the jury

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          know [the defendant] had confessed.            Any person
          conversant with the mental process of a jury in determining
          the guilt or innocence of an accused would be hard put to
          honestly deny this.

          The Commonwealth urges that the assistant district
          attorney was acting in good faith during his opening
          presentation to the jury and intended as of that moment to
          make evidentiary use of [the defendant’s] “confession,” but
          changed his mind as the trial progressed. Suffice it to say,
          the good faith of the prosecuting official does not lessen the
          prejudice suffered by [the defendant].

Id. at 1029.

       From this Court’s research, Wilson is unique in Pennsylvania

jurisprudence – it is the only case, that we have found, where a district

attorney’s good faith reference to a matter in an opening statement

necessitated a mistrial, when the district attorney later failed to introduce

the stated evidence at trial.4 Further, we believe that the lack of precedent

supporting Appellant’s position is for good reason.           In short, it is the

combination of the fact that:            the trial court routinely and repeatedly

instructs the jury that opening statements are not evidence; the trial court

also instructs the jury that its verdict must be based upon the evidence

presented and not upon the statements or arguments of counsel; under our

precedent, “[t]he jury is presumed to have followed the [trial] court’s

instructions;”5 and, as the United States Supreme Court has explained,
____________________________________________


4Appellant has cited to no such case; indeed, within Appellant’s brief to this
Court, Appellant did not even cite to or discuss Wilson.

5   Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010).



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“[m]any things might happen during the course of the trial which would

prevent the presentation of all the evidence described in advance. . . . [N]ot

every variance between the advance description and the actual presentation

constitutes reversible error, when a proper limiting instruction has been

given.”    Frazier, 394 U.S. at 736.     Simply stated, Wilson stands apart

because, in Wilson, the district attorney read the defendant’s own

confession to the jury during opening statements – and, as the Supreme

Court explained, the “most devastating evidence against one accused of

crime is a confession or admission of guilt.” Wilson, 402 A.2d at 1029.

      Indeed, in Frazier, the defendant was on trial for murder and the

prosecution expected to call the defendant’s co-conspirator, Jerry Lee Rawls,

to testify against the defendant at trial. Frazier, 394 U.S. at 733. As the

Supreme Court explained:

          after the trial began the prosecutor included in his opening
          statement a summary of the testimony he expected to
          receive from Rawls. The summary was not emphasized in
          any particular way; it took only a few minutes to recite and
          was sandwiched between a summary of [the defendant’s]
          own confession and a description of the circumstantial
          evidence the State would introduce.       At one point the
          prosecutor referred to a paper he was holding in his hands
          to refresh his memory about something Rawls had said.
          Although the State admitted in argument here that the jury
          might fairly have believed that the prosecutor was referring
          to Rawls' statement, he did not explicitly tell the jury that
          this paper was Rawls' confession, nor did he purport to read
          directly from it.

Id. at 733-734.




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     During trial, Rawls was called as a witness and he informed the trial

court that he intended to assert his privilege against self-incrimination to

every question concerning his activities on the day of the murder.       Rawls

was then dismissed from the witness stand. Id. at 734.

     Before the United States Supreme Court, the defendant claimed that

the prosecutor’s reference to Rawls’ confession during opening statements

deprived him of a fair trial. The Supreme Court disagreed and held:

        it is clear that this case is quite different from either
        Douglas [v. Alabama, 380 U.S. 415 (1965)] or Bruton [v.
        United States, 391 U.S. 123 (1968)]. In Douglas, the
        prosecutor called the defendant’s coconspirator to the stand
        and read his alleged confession to him; the coconspirator
        was     required     to    assert   his   privilege    against
        self-incrimination repeatedly as the prosecutor asked him to
        confirm or deny each statement. The [Supreme] Court
        found that this procedure placed powerfully incriminating
        evidence before the jury in a manner which effectively
        denied the right of cross-examination. Here, Rawls was on
        the stand for a very short time and only a paraphrase of the
        statement was placed before the jury. This was done not
        during the trial, while the person making the statement was
        on the stand, but in an opening statement. In addition, the
        jury was told that the opening statement should not be
        considered as evidence.        Certainly the impact of the
        procedure used here was much less damaging than was the
        case in Douglas. And unlike the situation in Bruton, the
        jury was not being asked to perform the mental gymnastics
        of considering an incriminating statement against only one
        of two defendants in a joint trial. Moreover, unlike the
        situation in either Douglas or Bruton, Rawls' statement
        was not a vitally important part of the prosecution's case.

        We believe that in these circumstances the limiting
        instructions given were sufficient to protect petitioner's
        constitutional rights. As the [Supreme] Court said in
        Bruton, “Not every admission of inadmissible hearsay or


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          other evidence can be considered to be reversible error
          unavoidable through limiting instructions; instances occur in
          almost every trial where inadmissible evidence creeps in,
          usually inadvertently.”     It may be that some remarks
          included in an opening or closing statement could be so
          prejudicial that a finding of error, or even constitutional
          error, would be unavoidable. But here we have no more
          than an objective summary of evidence which the
          prosecutor reasonably expected to produce. Many things
          might happen during the course of the trial which would
          prevent the presentation of all the evidence described in
          advance. Certainly not every variance between the advance
          description and the actual presentation constitutes
          reversible error, when a proper limiting instruction has been
          given. Even if it is unreasonable to assume that a jury can
          disregard a coconspirator's statement when introduced
          against one of two joint defendants, it does not seem at all
          remarkable to assume that the jury will ordinarily be able to
          limit its consideration to the evidence introduced during the
          trial.   At least where the anticipated, and unproduced,
          evidence is not touted to the jury as a crucial part of the
          prosecution’s case, it is hard for us to imagine that the
          minds of the jurors would be so influenced by such
          incidental statements during this long trial that they would
          not appraise the evidence objectively and dispassionately.

Id. at 735-736 (some internal quotations and citations omitted) (internal

footnote omitted).

        In the case at bar, it is uncontradicted that: the ADA acted in good

faith when, during her opening statement, she described Appellant’s alleged

rape and involuntary deviate sexual intercourse of Complainant Niece;

through no fault of “the court, counsel, or the parties,” the Commonwealth

was prevented from introducing the evidence related to Complainant Niece;6


____________________________________________


6   See Metzer, 634 A.2d at 232.



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Appellant was granted a judgment of acquittal on the charges related to

Complainant Niece; the allegations and statements related to Complainant

Niece were confined to the ADA’s opening statement and were never heard

again during trial or during the Commonwealth’s closing arguments; and,

the trial court repeatedly instructed the jury that opening statements are not

evidence and that the jury’s verdict must be based upon the evidence

presented and not upon the statements or arguments of counsel. Moreover,

we note that the allegations related to Complainant Niece were “not touted

to the jury as a crucial part of the prosecution’s case” against Appellant as to

the charges that actually went to the jury – those with respect to

Complainant Daughter.

      Under these facts, we conclude that Appellant was not entitled to a

mistrial after it was discovered that the Commonwealth could not proceed on

the charges related to Complainant Niece.       Appellant’s trial – though not

perfect – was not unfair. Commonwealth v. Robinson, 877 A.2d 433, 443

(Pa. 2005) (“[a]ppellant is entitled to a fair trial, not a perfect trial”);

Frazier, 394 U.S. at 735 (“[n]ot every admission of inadmissible hearsay or

other evidence can be considered to be reversible error unavoidable through

limiting instructions; instances occur in almost every trial where inadmissible

evidence creeps in, usually inadvertently”) (internal quotations and citations

omitted).   Appellant’s ineffective assistance of counsel claim thus lacks




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arguable merit. As such, we conclude that the PCRA court did not err when

it dismissed Appellant’s PCRA petition without holding a hearing.7

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




____________________________________________


7 We have concluded that the PCRA court did not err when it dismissed
Appellant’s petition without holding a hearing. Therefore, Appellant’s second
numbered claim on appeal (wherein he claims that he is entitled to post-
conviction collateral relief as a matter of law) fails.




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