J-S73041-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
ALEXANDER MELO,                            :
                                           :
                    Appellant              :          No. 2161 MDA 2013

         Appeal from the PCRA Order entered on October 31, 2013
              in the Court of Common Pleas of York County,
             Criminal Division, No. CP-67-CR-0005500-2009

BEFORE: BOWES, WECHT and MUSMANNO, JJ

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 22, 2015

      Alexander Melo (“Melo”), pro se, appeals from the Order dismissing his

first Petition for relief filed pursuant to the Post Conviction Relief Act

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

      In 2005, Melo raped the thirteen-year-old daughter of his live-in

girlfriend (hereinafter “the victim”).   Several years later, when the victim

was seventeen years old, her father questioned her about the rape, of which

he had recently learned upon reading about the incident in the victim’s

notebook/diary (hereinafter “the notebook”).1 Upon being questioned by the

police, the victim recounted the rape to them and identified Melo as the

perpetrator.     In August 2009, the police charged Melo with rape, indecent




1
  The notebook was not offered into evidence at trial, as the victim and her
father stated that it was lost during a move.
J-S73041-14

assault, and related offenses (collectively referred to as “the charged

offenses”).

      The matter proceeded to a jury trial, at which Melo was represented by

Joseph Kalasnik, Esquire (hereinafter “Attorney Kalasnik” or “trial counsel”).

At the close of trial, the jury found Melo guilty of the charged offenses.

      Following trial, Melo retained new counsel, Matthew R. Gover, Esquire

(“Attorney Gover”), and the trial court permitted Attorney Kalasnik to

withdraw as counsel. The trial court subsequently sentenced Melo to serve

an aggregate term of five to ten years in prison. Attorney Gover timely filed

a Notice of Appeal from Melo’s judgment of sentence. On appeal, this Court

affirmed the judgment of sentence, after which the Supreme Court of

Pennsylvania denied allowance of appeal.      See Commonwealth v. Melo,

31 A.3d 747 (Pa. Super. 2011) (unpublished memorandum), appeal denied,

30 A.3d 1192 (Pa. 2011).

      In June 2012, Melo timely filed a pro se PCRA Petition. Following the

filing of the PCRA Petition, the PCRA court appointed Melo counsel, Seamus

Dubbs, Esquire (“PCRA counsel”), who filed an Amended PCRA Petition.

Following a hearing held on June 27, 2013 (hereinafter referred to as “the

PCRA hearing”), the PCRA court entered an Order on October 31, 2013,

dismissing Melo’s PCRA Petition.    In response, PCRA counsel timely filed a

Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of

Errors Complained of on Appeal.




                                   -2-
J-S73041-14

      In April 2014, Melo filed with this Court an Application requesting

permission to proceed pro se on appeal, and for a remand for the PCRA

court to conduct a hearing pursuant to Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1998). This Court granted Melo’s Application. After conducting

a hearing (hereinafter referred to as “the Grazier hearing”), the PCRA court

granted Melo permission to proceed pro se, finding that his decision was

made knowingly, intelligently and voluntarily.

      On appeal, Melo presents the following issues for our review:

      I. Was [Melo] denied due process of law during collateral
         review of the judgment of sentence?

      II. Did the [PCRA] court [] err[] when it found [that] trial
          counsel [was] not ineffective for failing to request a missing
          document instruction?

     III. Did the [PCRA] court [] err[] when it found [that] trial
          counsel [was] not ineffective [for] failing to object to
          prejudicial testimony?

     IV. Did the [PCRA] court [] err[] when it found [that] trial
         counsel [was] not ineffective [for] failing to request [a jury]
         instruction on prior inconsistent statements?

      V. Was [Melo] denied due process when the [trial] court [] held
         [that Melo’s] claim [concerning the lack of a] prior bad acts
         instruction [was] waived?

Brief for Appellant at 4 (capitalization omitted).

      All of Melo’s issues raise claims of ineffectiveness of counsel (although

he does not identify all of them as such in his Statement of Questions

Presented). The applicable standards of review regarding the dismissal of a

PCRA petition and ineffectiveness claims are as follows:



                                   -3-
J-S73041-14

             We must examine whether the record supports the PCRA
      court’s determination, and whether the PCRA court’s
      determination is free of legal error. The PCRA court’s findings
      will not be disturbed unless there is no support for the findings in
      the certified record.

                                 ***

             It is well-established that counsel is presumed to have
      provided effective representation unless the PCRA petitioner
      pleads and proves all of the following: (1) the underlying legal
      claim is of arguable merit; (2) counsel’s action or inaction lacked
      any objectively reasonable basis designed to effectuate his
      client’s interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error. The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citations omitted).

      In his first issue, Melo essentially challenges the effectiveness of his

PCRA counsel. See Brief for Appellant at 13-15, 27.2




2
  In connection with his claim of PCRA counsel’s ineffectiveness, Melo also
argues that, after he had received a copy of the record following the Grazier
hearing, he discovered additional claims of trial counsel’s ineffectiveness that
PCRA counsel should have raised and preserved for appeal. See Brief for
Appellant at 15, 17-27. For the reasons discussed below, we will not
address these additional claims in this appeal. However, we observe that, at
the PCRA hearing, Melo stated that (1) he wished to proceed with PCRA
counsel as his attorney and withdraw his request to proceed pro se; (2) he
was satisfied with the four allegations of trial counsel’s ineffectiveness that
PCRA counsel raised in the Amended PCRA Petition; and (3) there were no
additional issues that Melo wanted to pursue at that time. See N.T.,
6/27/13, at 4-5, 13-17; see also id. at 13-16 (wherein PCRA counsel
colloquied Melo about his additional pro se allegations of trial counsel’s
ineffectiveness and why such claims were not viable).

                                  -4-
J-S73041-14

      It is well established that “claims of PCRA counsel’s ineffectiveness

may not be raised for the first time on appeal.”         Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc) (collecting cases);

Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012) (stating

that “issues of PCRA counsel effectiveness must be raised in a serial PCRA

petition or in response to a notice of dismissal before the PCRA court.”); see

also Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time

on appeal).

      In the instant case, Melo never raised his claim of PCRA counsel’s

ineffectiveness prior to the dismissal of his PCRA Petition and PCRA counsel’s

filing of a Notice of Appeal and Rule 1925(b) Concise Statement on Melo’s

behalf.3 See Ford, 44 A.3d at 1200 (holding that “absent recognition of a

constitutional right to effective collateral review counsel, claims of PCRA

counsel ineffectiveness cannot be raised for the first time after a notice of

appeal has been taken from the underlying PCRA matter.”).         Accordingly,

because Melo raised this claim for the first time on appeal, we may not now




3
  Though Melo challenged PCRA counsel’s representation at the Grazier
hearing, arguing, inter alia, that counsel did not adequately communicate
with him and failed to provide him with a copy of the record, same does not
adequately preserve his instant claims of PCRA counsel’s ineffectiveness,
which he raised for the first time in this appeal. See Henkel, supra; Ford,
supra. Additionally, PCRA counsel stated at the Grazier hearing that he
was actively working on Melo’s appellate brief.


                                  -5-
J-S73041-14

address it. See Henkel, supra; Ford, supra.4

      Melo next argues that the PCRA court erred by not ruling that trial

counsel was ineffective for failing to request a missing evidence jury

instruction concerning the notebook.         See Brief for Appellant at 28-29.

Specifically, Melo asserts as follows:

      The alleged notebook was central to the [p]rosecutor’s case in
      this matter. [] [T]he only individuals who seen [sic] the entry
      [in the notebook] alleging the incident w[ere the victim and her
      father]. [] [T]his [was] a circumstantial case resting on the
      credibility of the evidence presented. Not to request a missing
      document instruction under these circumstances had no
      reasonable basis to effectuate [Melo’s] best interest.

Id. at 28 (citation omitted).     According to Melo, there is a reasonable

probability that the jury would have rendered a different verdict if the trial

court had issued a missing document instruction. See id. at 29.

      In its Pa.R.A.P. Opinion, the PCRA court addressed this claim and

determined that trial counsel was not ineffective in this regard. See PCRA

Court Opinion, 10/31/13, at 3-5.         We agree with the PCRA court’s sound

rationale and determination, and therefore affirm on this basis with regard to

this issue. See id.




4
  Though we express no opinion as to the merits of Melo’s claim of PCRA
counsel’s ineffectiveness, Melo retains the right to raise this claim in a
subsequent PCRA Petition. See Commonwealth v. Jette, 23 A.3d 1032,
1044 n.14 (Pa. 2011) (stating that “[w]hile difficult, the filing of a
subsequent timely PCRA petition [alleging ineffectiveness of PCRA counsel] is
possible, and in situations where an exception pursuant to [42 Pa.C.S.A.]
§ 9545(b)(1)(i-iii) can be established[,] a second [PCRA] petition filed
beyond the one-year time bar may be pursued.”).

                                   -6-
J-S73041-14

      In his third issue, Melo contends that trial counsel was ineffective

because he unreasonably failed to object to the testimony of the victim’s

mother, Christian F., concerning alleged incidents of physical abuse that

Melo had committed against her while they were in a romantic relationship,

despite the fact that the trial court had prohibited any prior bad act

testimony. See Brief for Appellant at 30, 32; see also id. at 32 (arguing

that “[t]o allow this prejudicial evidence to go unchallenged was to allow a

bias and ill will to be created in the minds of the jury against [Melo,] and []

result[ed] in his wrongful conviction of crimes he is actually innocent of ….”).

      The PCRA court addressed this claim in its Opinion and stated its

reasons for determining that trial counsel was not ineffective.      See PCRA

Court Opinion, 10/31/13, at 5-7. We agree with the PCRA court’s rationale

and determination, and therefore affirm on this basis concerning Melo’s

instant ineffectiveness challenge. See id.

      Next, Melo contends that the PCRA court erred by failing to find that

trial counsel was ineffective for not requesting a jury instruction on the

victim’s prior inconsistent statements. See Brief for Appellant at 33-35; see

also id. at 33-34 (setting forth the various statements of the victim that,

Melo contends, are inconsistent).

      In its Opinion, the PCRA court addressed this ineffectiveness challenge

and stated its reasons for rejecting it. See PCRA Court Opinion, 10/31/13,

at 10-12.   We agree with the PCRA court’s rationale and determination,




                                    -7-
J-S73041-14

which is supported by the record, and affirm on this basis concerning Melo’s

ineffectiveness challenge. See id.

      Regarding Melo’s final issue, he essentially raises an ineffectiveness of

counsel challenge concerning his direct appeal counsel’s (Attorney Gover),

failure to challenge the trial court’s alleged error in failing to issue a jury

instruction on prior bad acts under Pa.R.E. 404(b). See Brief for Appellant

at 36.5

      The PCRA court addressed this claim in its Opinion and properly

concluded that Attorney Gover was not ineffective in this regard. See PCRA

Court Opinion, 10/31/13, at 7-9.6 Our review confirms that the PCRA court’s

persuasive rationale is supported by the law and the record, and we

therefore affirm on this basis in rejecting Melo’s final issue on appeal. See

id.

      Accordingly, because we conclude that the PCRA court neither abused

its discretion nor committed an error of law by dismissing Melo’s first PCRA

Petition, we affirm the Order on appeal.




5
  To the extent that Melo argues that “the court below held [that Melo’s]
claim [concerning the lack of a] prior bad acts instruction [was] waived[,]”
Brief for Appellant at 36 (capitalization omitted), this assertion is factually
inaccurate.
6
  Attorney Gover did not testify at the PCRA hearing because he passed
away prior to the hearing.

                                  -8-
J-S73041-14

     Order affirmed.

     Wecht, J., joins the memorandum.

     Bowes, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2015




                                 -9-
                                                                                               J - :5 7·3 0 !-I ! - ! Lf
                                                                                                           Circulated 12/18/2014 12:09 PM




                               IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
                                                   CRIMINAL DIVISION

                          COMMONWEALTH                                                  NO. CP-67-CR-0005500-2009

                                             v.

                          ALEXANDER MELO,
                                   Defendant


                          COUNSEL,0F
                          COUNSEL.0F
                                :!
                                      RECORD:
                                    -"'
                                    .
                                        ..   ~

                                             Stephanie Lombardo, Esquire                Seamus Dubbs, Esquire



:.
       "-
     .1.


       :~::
              ':.1
              ';.I

              ~- ......
              t:;
                           ~''U'
                                .-,,-
                              I.Y
                           ~..i
                                 J..
                                 f,

                                :::5
                            .J'-'>
                           • .
                             ,0
                                             Counse!
                                             Counsel for the Commonwealth               Counsel for the Defendant


      :;
;:~.:.. ..    (.)          :::t:u
                           0.:: '-'
                                                                          SUPPORT OF ORDER
                                                               OPINION IN SUPPORT
, ';':":1--1
_ "._ c'::
                          !"LL
                          ~lt...
                          00
                          ::a: ::x::
                           :a-: ""
                           co:::
                           0<>:
                          'ClWJ.
                           Cl "-'                                                                            peRA Petition.
                                             On June 27, 2013, a hearing was held on the Defendant's Amended PCRA
                               - I
                               --I
                               U
                               (.)


                          Having considered the evidence and argument offered on June 27,2013,
                                                                                      27, 2013, and having

                          considered applicable case law, this Court has DENIED Defendant's Amended PCRA

                          Petition. The Court now issues this Opinion in support of that Order.

                          1.                 PCRA Discussion

                                             As stated in Strickland v. Washington, "the benchmark for judging any claim of

                          ineffectiveness must be whether counsel's conduct so undermined the proper functioning of

                           the adversarial process that the trial cannot be relied on as having produced ajust result."

                           466 U.S. 668, 686 (1984). Pennsylvania codified this principle in the Post-Conviction Relief

                                                                          "[i]neffective assistance of counsel which, in
                           Act, which provides post-conviction relief for "riJneffective
                                                                              Circulated 12/18/2014 12:09 PM




                                                                                                           I



 the circumstances
the   circumstancesofthe
                   of the particular
                          particularcase,
                                     case, so
                                            so undermined
                                                undermined the
                                                            the truth-determining
                                                                 truth-determining process
                                                                                    process that
                                                                                             thatno
                                                                                                  no

 reliable adjudication
reliable  adjudicationof
                       ofguilt
                         guilt or
                               or innocence
                                   innocence could
                                              could have
                                                    have taken
                                                          taken place."
                                                                place." 42 Pa.C.S.A. §§
                                                                        42 Pa.C.S.A,

9543(a)(2)(ii). Pennsylvania'
9S43(a)(2)(ii). Pennsylvania's  Supreme Court
                              5 Supreme Court has
                                              has interpreted
                                                   interpreted this
                                                                this to
                                                                      to mean
                                                                         mean that
                                                                               that to
                                                                                     to show
                                                                                        show

 ineffective assistance
ineffective  assistance of
                        ofcounsel,
                           counsel, aa petitioner
                                       petitioner must
                                                  must show
                                                       show that:
                                                             that:
                             -'
        (1)
        (1) the
            the claim
                claim underlying
                        underlying the
                                    the ineffectiveness
                                         ineffectiveness claim
                                                         claim has
                                                                has arguable
                                                                     arguable merit;
                                                                              merit; (2)
                                                                                     (2)
        counsel's actions
        counsel's   actions lacked
                            lacked any
                                    any reasonable
                                          reasonable basis;
                                                     basis; and
                                                            and (3)
                                                                 (3) counsel's
                                                                     counsel's actions
                                                                               actions
        resulted in
        resulted  in prejudice
                     prejudice to
                                to petitioner.
                                   petitioner.

Commonwealth v.v. Cox,
Commonwealth      Cox, 983
                       983 A2d
                           A.2d 666,
                                666, 678
                                     678 (Pa.
                                         (Pa. 2009)
                                              2009) (citing Commonwealth v.v. Collins,
                                                    (citing Commonwealth      Collins, 957
                                                                                       957

     237,244
A.2d 237, 244 (Pa. 2008)). "A chosen strategy will not be found to have lacked a reasonable

basis unless it is proven 'that an alternative not chosen offered a potential for success

                                               pursued. '" 983 A2d
substantially greater than the course actually pursued.'"      A.2d 666, 678 (Pa. 2009)

(quoting Commonwealth v. Williams,
                         Willioms, 899 A.2d
                                       A2d 1060, 1064 (Pa. 2006) (quoting

Commonwealth v. Howard, 719 A.2d 233,237
                                 233, 237 (Pa. 1998))). In Commonwealth v. Pierce, the

Pennsylvania Supreme Court wrote that,
                                 that, "(p]rejudice
                                       "[p]rejudice in the context of
                                                       the context of ineffective
                                                                      ineffective assistance
                                                                                  assistance

of
of counsel
   counsel means
           means demonstrating that
                               that there
                                    there is
                                          is aa reasonable
                                                reasonable probability
                                                           probability that,
                                                                       that, but
                                                                             but for
                                                                                 for counsel's
                                                                                     counsel's

error,
error, the
       the outcome
           outcome of
                   ofthe
                      the proceeding
                          proceeding would
                                     would have
                                           have been
                                                been different."
                                                     different." 786
                                                                 786 A.2d
                                                                     A,2d 203,213
                                                                          203, 213 (Pa.
                                                                                    (Pa.

2001)  (citing Commonwealth
2001) (citing  Commonwealth v.v. Kimball,
                                 Kimball, 724
                                          724 A.2d
                                              A.2d 326,
                                                   326, 332
                                                        332 (Pa.
                                                             (Pa. 1999)).
                                                                  1999». Lastly,
                                                                          Lastly, "the
                                                                                  "the law
                                                                                        law

presumes
presumes that
          that counsel
               counsel was
                       was effective
                           effective and
                                     and the  burden of
                                          the burden ofproving
                                                        proving that
                                                                 that this
                                                                       this presumption
                                                                            presumption isis false
                                                                                              false

rests
 rests with
       with the
             the petitioner."
                 petitioner." 983
                              983 A.2d 666, 67,8
                                  A,2d 666,  67,8 (Pa.
                                                   (Pa. 2009)  (citing Commonwealth
                                                        2009) (citing  Commonwealth v,v. Basemore,
                                                                                         Basemore,

744
 744 A.2d
     A2d 717,
          717, 728
                728 (Pa.
                     (Pa. 2000)).
                           2000».

        A.
        A.      Missing
                A1issingDocument
                        DocumentInstruction
                                 Instruction
                                                  22
                                                                          Circulated 12/18/2014 12:09 PM




         The first issue raised by the Defendant is whether Attorney Kalasnik was ineffective

\vhen he did not request the missing document instruction for a notebook referenced in
when

testimony but lost prior to trial.

         At the June 27, 2013 hearing, the Defendant opined that there was no missing
                     27,2013

document instruction; however, the Defendant went on to testify that he remembered

Attorney Kalasnik crossing witnesses about the notebook and calling the notebook's

existence into doubt during closing. In describing thc
                                                   the notebook, Attorney Kalasnik said that

it supposedly claimed relevant information and that, while the notebook was never produced,

the victim's father and friends were supposed to have knowledge of the notebook and they

testified. Attorney Kalasnik generally recalled inconsistency between witnesses as to what

information the notebook contained and he was also satisfied with how he addressed the
infonnation

notebook on cross. Attorney Kalasnik also testified on direct that he does not believe a

missing document instruction would have helped because the defense was unable to produce

sufficient reasons for the jury to disbelieve the accuser. However, on cross, Attorney

Kalasnik stated that it could have helped if a missing document instruction were to have been

glven.
given.

          It seems axiomatic that the claim underlying the ineffectiveness claim has arguable

 merit as to a missing document instruction because the document and its absence seem to

 have instigated a lot of questioning and closing remarks. The second prong of the

 ineffectiveness standard, whether counsel's actions lacked any reasonable basis, is less sure.
                                                 J3
                                                                         Circulated 12/18/2014 12:09 PM




                     determine whether "'an
We are instructed to detennine         '''an alternative not chosen offered a potential for
                                                                   qi3:, A.~d. (,c,c,
                                                                   q£r3 A-~,l  G,G,(,
success substantially greater than the course actually pursued.
                                                       pursued.'"", Cox"at 678. Here, would

having had the missing document instruction have proven substantially more successful than

not having the jury hear such an instruction? Attorney Kalasnik testified that neither he nor'
                                                                                          nor

the Defendant could produce sufficient evidence to discredit the accuser and that fact, not a
             .• _
                • dQL"",~~f
                  dQL<A M€..t/1     ._
lack of the mlSSIng wltMe:;;s-mstructlOn, was the real problem the Defendant faced. It seems
            mlssmgwltness-mstructlOn,

to this Court as though any gain from the missing document instruction would have been

minimal at best. As such, it does not appear as though Attorney Kalasnik'
                                                                Kalasnik'ss actions lacked

                                        of not requesting the instruction does not show
any reasonable basis. The chosen course o[not

Attorney Kalasnik to have been ineffective. If, however, Attorney Kalasnik's actions were

unreasonable, we proceed to the third prong of the ineffectiveness standard.

        The third prong asks whether counsel's actions resulted in prejudice to the petitioner.

 Again, "[p ]rejudice in the context of ineffective assistance of counsel means demonstrating
        "[p]rejudice

that there is a reasonable probability that, but for counsel's error, the outcome of the
                                               16&          ;! o::~
                                                     A.;;lJ "03
                                               75" A-;)c1
proceeding would have been different." PierceVat 213. The jury heard defense counsel call

the contents and very existence of the notebook into question repeatedly during cross and in

his closing. The jury was on notice that the fidelity and existence ofthe
                                                                    of the notebook was

 questioned by the Defendant. It does not follow that there is a reasonable probability that the

 outcome of the proceedings would have been different had the missing document instruction

 been given. This Court finds that the Defendant did not demonstrate that counsel's actions
                                                4
                                                                          Circulated 12/18/2014 12:09 PM




resulted in prejudice. Attorney Kalasnik was not ineffective for not requesting the missing

document instruction.

       B.      Prior Bad Act Testimony



in not having objected to Christian   .'s
       The second issue that must be dealt with is whether Attorney Kalasnik was ineffective

                                              testimony regarding abuse she suffered at the

hands of the Defendant, which went beyond the Court's prohibition on such testimony.

       During the June 27, 2013 hearing, the Defendant stated that he could not recall

whether counsel discussed with him the propriety of admitting Christian    F8s testimony

Attorney Kalasnik asking Christian    F_
that the Defendant had once pinned her to a wall by her neck. The Defendant did remember

                                                              exwgirlfriend and the accuser's
                                              the Defendant's ex-girlfriend

mother, questions about the Defendant that were designed to impeach Christian. Specifically,

Attorney Kalasnik testified that he queried Christian as to why she never followed up to the

police regarding the Defendant's alleged abuse of her. Moreover, Attorney Kalasnik accused

Christian of improper motives by suggesting she tried to extort money from the Defendant

and that Christian was angry at having been kicked out of the Defendant's home. Attorney

Kalasnik could not recall why he did not object to the choking incident allegations coming in,

which violated a judicial order that only prior bad acts the victim had witnessed were to come
                                                                                                           I
 in. That said, Attorney Kalasnik stated that it is sometimes best to not object so as not to

 draw attention to adverse information
                           infonnation and that at a later point he attempted to diminish the
                                                                                                           I
 alleged assault.
                                                 5
                                                                            Circulated 12/18/2014 12:09 PM




        There is no doubt that the claim underlying the ineffectiveness claim has arguable

merit as to the alleged choking incident because that occurrence was to have been kept out by

      of the Court. The second prong of the ineffectiveness standard, whether counsel's
order orthe

actions lacked any reasonable basis, is absent here. Again, we are instructed to determine

 whether '''an alternative not chosen offered a potential for success substantially greater than

 the course actually pursued.'" Cox, 983 A.2d 666, 678 (Pa. 2009). Here, the objectionable

 testimony was stated in open court and in violation orthe
                                                     of the preexisting moratorium established

 by the Court. In commonly used court vernacular, testimony once uttered before aajury
                                                                                  jury is

, akin to a bell, \vhich
                  which cannot be uurung.
                                  unrung. The Court is compelled to ask what an objection

 would have accomplished. Short of a mistrial, the jury could only have been ordered that the
                                                                                          thc

 testimony was stricken and not to be considered. Attorney Kalasnik's testimony that it is

 sometimes best to let hannful
                       harmful statements go and to minimize them later is a course of action

 that this Court finds is equally likely, or better, of succeeding than asking for a curative

 instruction. As to this charge, it does not appear as though Attorney Kalasnik's actions

 lacked any reasonable has is. The chosen course of not objecting does not demonstrate that
                       basis.

 Attorney Kalasnik was ineffective. If, however, Attorney Kalasnik's actions were

 unreasonable, we proceed to the third prong of the ineffectiveness standard.

         The third prong requires the petitioner to demonstrate that counsel's actions resulted

  in prejudice to the petitioner. Again, "[p]rejudicc
                                         "[p]rejudice in the context of ineffective assistance of

  counsel means demonstrating that there is a reasonable
                                              reasonahle probability
                                                         prohability that, but for counsel's
                                                  6
                                                                                        Circulated 12/18/2014 12:09 PM




error, the outcome of the proceeding would have been different." Pierce, 786 A.2d 203, 213

(Pa. 200 1).
         I). The jury heard defense counsel question the veracity of Christian's account of the

alleged assault and accuse her of improper motives on cross. The jury heard a stronger

rebuke of the testimony from Attorney Kalasnik than what the Court could have offered

following an objection. It, therefore, does not follow that there is a reasonable probability

that the outcome of the proceedings would have been different had the missing document




                                   F.'s
instruction been given. This Court finds that Attorney Kalasnik was not ineffective for

failing to object to Christian F . ' s testimony regarding incidents of abuse.

         C.      Failure
                 .Failure to Appeal Lack of Prior Bad Acts Instruction

         For his third PCRA complaint, the Defendant alleges that Attorney Gover was

ineffective for not appealing the lack of an instruction on prior bad acts testimony under Rule

of Criminal Procedure 404(b).

         During the June 27, 2013 hearing, the Defendant testified that he believes the

outcome of his trial would have been different with different jury instructions. The

Defendant also testified that he does not remember Attorney Gover discussing an appeal for

the lack of an instruction on prior bad acts. Attorney Kalasnik testified that he could not

remember whether he had input into instructions, but that the Court indicated it would not

give a 404(b) instruction!.
              instructionl. That said, Attorney Kalasnik does not believe that a prior bad acts


                        Attorney Kalasnik did have input into the jury instructions and that the Court did not give
1I The Court notes that Attomey
                                                                                                        4/141l0, at
an instruction on prior bad acts for fear of drawing too much attention to them. (Notes of Testimony, 4/14/10,
                                                         7
                                                                             Circulated 12/18/2014 12:09 PM




instruction would have helped because the defense presented a great volume of persuasive

evidence. Attorney Kalasnik went on to note that the jury even came back deadlocked at

            Attorney-Kalasnik
some point. Attorney -Kalasnik went on to testify on cross by the Petitioner that while he

believed, at the time of trial, the instructions were sufficient, it is possible that a prior bad

acts instruction might have helped the Defendant.

        We do not doubt that the claim underlying the ineffectiveness claim has arguable

merit as to a prior bad acts instruction because the prior bad acts in question were not to have

been brought into the trial. As for the second prong of the ineffectiveness standard, we

cannot make a finding that Attorney Gover's actions lacked any reasonable basis based upon

testimony, because Attorney Gover was not available to testify at the June 27, 2013 hearing.

Our inquiry does not end here, however, because, by agreement of the parties at the June 27,

2013 hearing, Attorney Gover's absence was not deemed to have put either party at a

disadvantage. As Attorney Gover did not submit the lack of a prior bad acts instruction for

appeal, we find that "'an alternative not chosen offered a potential for success substantially

greater than the course actually pursued. '" Cox, 983 A.2d 666, 678 (Pa.
                                 pursued.'"                         CPa. 2009). This is so

because only those issues which are appealed will be considered. The alternative of lodging

 an appeal offered substantially better potential for success than not appealing the issue. As to

 this prong, it does appear as though Attorney qtover's
                                               <lover's actions lacked any reasonable basis.

 We, then, proceed to the third prong of the ineffectiveness standard.


 349-50.)                                          8
                                                                               Circulated 12/18/2014 12:09 PM




           The third prong requires the petitioner to demonstrate that counsel's actions resulted

I   in prejudice to the petitioner. Again, "lp
                                           "[p ]rejudice in the context of ineffective assistance of

    counsel means demonstrating that there is a reasonable probability that, but for counsel's

    error, the outcome of the proceeding would have heen
                                                    been different." Pierce, 786 A2d
                                                                                 A.2d 203, 213

    (Pa. 200 I). This Court does not find Attorney G)bver's
    CPa. 2001).                                    ¥ver's action in not appealing the lack of an

    instruction on prior bad acts testimony resulted in prejudice to the petitioner. Though

    Attorney Kalasnik testified on cross that perhaps an instruction on prior bad acts would have

    been helpful,
         hclpful, his testimony on direct stands in contradiction and was more illuminating in

    detail. On direct, Attorney Kalasnik testified that he did not believe that an extra instruction

    would have helped because the defense presented a great volume of persuasive evidence and

    still did not get a favorable decision. It is somewhat contradictory that Attorney Kalasnik
    stili

    then noted the jury was, at one point, deadlocked. This implies that the decision was close

    and perhaps could have been nudged towards finding the Defendant not guilty if some little

    something more had been presented that was favorable to thc
                                                            the Defendant. However, as the

    Commonwealth noted at the June 27, 2013 hearing, Attorney Kalasnik did not preserve the

    issue for appeal. A review of the trial transcript confirms this account. (Notes of Testimony,

    4114110, at 349-50.) Consequently and regardless of potential validity, Attorney Gover could

         have raised the issue on appeal. This Court finds that Attorney Gover was not ineffective
     not havc

                                Court's decision not to give a prior bad acts instruction.
     for failing to appeal this COlili's

             D.      Failure to Request
                                Reques! Prior inconsistent            lns!ruction
                                              Inconsistent Statements Instruction
                                                      9
                                                                                Circulated 12/18/2014 12:09 PM




           The fourth and final issue raised by the Defendant is whether Attorney Kalasnik was
                                                                                           wa.'l

    ineffective when he did not request an instruction on prior inconsistent statements for the

    inconsistent statements of the victim.

            In the hearing on June 27,2013,
                                   27, 2013, the Defendant stated that he had no memory of prior

    inconsistent statements of the victim being raised at trial or on appeal. Attorney Kalasnik

    testified that he had told the Defendant that this was a he-said-she-said case in which the

                                   reasoo to disbelieve the victim and her parents' credibility. To
    defense had to give the jury a reason

    that end, Attorney Kalasnik urged the Defendant to wrack his brain for reasons why the

    victim or her parents would accuse him. Attorney Kalasnik also testified that he could not

    remember if the
                thc Court gave witness credibility or inconsistent statements instructions. A

    review of the trial transcript reveals that the Court did give a witness credibility instruction.
                                                                                         instmction.

    (N.T., 4114/10,
           4114110, at 359.)

            Attorney Kalasnik's June 27, 2013 testimony included that the jury, at one point,

    came back deadlocked. Perhaps the instruction
                                      instmction the Defendant believes should have been

    requested would have aided the defense in such
                                              sueh a close
                                                     dose call situation. As such, it seems that

    the claim underlying the ineffectiveness claim has arguable merit as to not requesting an

    instruction on prior inconsistent statements by the victim. The second prong of the
                                                                                 ofthc

    ineffectiveness standard, whether counsel's actions lacked any reasonable basis, is less sure.
                                                                                             surc.

    We are instructed to determine
                         detennine whether
                                   whethcr "'an
                                           '''an alternative not chosen offered a potential for

    success substantially greater than the course actually pursued. ",
                                                                    '" Cox, 983 A.2d 666, 678 (Pa.
                                                                                              CPa.
I                                                    10
I
                                                                              Circulated 12/18/2014 12:09 PM




    2009). Here, would having had the prior inconsistent statements instruction have proven

    substantially more successful than not having the jury hear such an instruction? The Court

    gave the standard witness credibility instruction. When                         Kalasnik' s
                                                       \Vhen combined with Attorney Kalasnik's

    cross of the victim and closing statement, the jury was well aware that the victim's testimony
I

    was in question. And, ultimately, the point ofa
                                                of a prior inconsistent statements instruction is to

    highlight witness credibility. Any gain from a prior inconsistent statements instruction would

    have been small and certainly would not have risen to the level of a substantially greater

    potential for success. As such, it does not appear as though Attorney Kalasnik's actions

    lacked any reasonable basis. The chosen course of not requesting the instruction does not

    show Attorney Kalasnik to have been ineffective. If, however, Attorney Kalasnik's actions

    were unreasonable, we proceed to the third prong of the ineffectiveness standard.

            The third prong asks whether counsel's actions resulted in prejudice to the petitioner.

     Again, "[p ]rejudice in the context of ineffective assistance of counsel means demonstrating

    that there is a reasonable probability that, but for counsel's error, the outcome of the

    proceeding would have been different." Pierce, at 213. The jury heard defense counsel cross
                                                 i


    the victim and make a closing argument premised upon perceived inconsistencies. The jury

     was aware that the victim's statements were in question. It does not follow that there is a

     reasonable probability that the outcome of the proceedings would have been different had the

     prior inconsistent statements instruction been given. This Court finds that the Defendant did

     not demonstrate that counsel's actions resulted in prejudice. Attorney Kalasnik was not
                                                    11
                                                    "
                                                                                    Circulated 12/18/2014 12:09 PM




                                    \='f:; of ;"C!H15:S.t-t:-VI
                                    ?;o.      ,V\ c.o,~ 5: ste.V\ st",-
                                                                   sh,- e.M€V\
                                                                         e.1"IEV\
  neffective for not requesting the R1jg~jlig
.'neffective                        roissi lig d<I...IIcQment-instruction.
                                                        unp lit instruction.

I.       Conclusion

         For the reasons stated above, the Court hereby DENIES
                                                        DEN[ES the Defendant's petition.




                                                              COuRT,
                                                       BY THE COURT,




DATED: October }),2013
               ")),2013




                                                         12
