J-S21043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GEOFFREY ELKINGTON,

                            Appellant                No. 2926 EDA 2014


               Appeal from the PCRA Order September 23, 2014
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0001376-2009


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 08, 2015

        Appellant, Geoffrey Elkington, appeals from the order denying his

counseled first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A.            §§ 9541–9546.    Appellant claims ineffective

assistance of trial counsel. We conclude that under our standard of review

Appellant has failed to prove his trial counsel was ineffective. Accordingly,

we affirm.

        On April 14, 2010, a jury convicted Appellant of nine counts of

involuntary deviate sexual intercourse with a child; one count of attempted

rape of a child; five counts of aggravated indecent assault (complainant less

than thirteen years old); two counts of indecent assault; two counts of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S21043-15



corruption of minors; and eleven counts of sexual abuse of children

(possession of child pornography). (See Verdict Slip, 4/14/10).

       We summarize the facts and procedural history of this case most

pertinent to the issue on appeal.              Appellant’s conviction arose out of a

course of conduct with the two minor children, then ages six and four, of a

girlfriend he met online. With the consent and cooperation of the girlfriend 1

Appellant began taking sexually provocative photographs of the daughters in

the nude, and in lingerie; he eventually proceeded to engage in numerous

sexual acts with them, also photographed, particularly with the older

daughter. (See PCRA Court Opinion, 9/23/14, at 1-2).

       Of specific interest for purposes of this appeal, before trial the

Commonwealth        obtained     a   court     order   permitting   it   to   photograph

Appellant’s feet.      (See id. at 3).          However, the Commonwealth never

followed up.

       The crux of Appellant’s ineffectiveness claim is that his trial counsel

should have introduced photographs of his feet, purportedly to prove that he

did not have a “deformed” toe like the man in a photograph presented (and




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1
  The former girlfriend, Geraldine Alexinas, pleaded guilty to related charges
and was sentenced to not less than fifteen nor more than thirty years’
incarceration in a state correctional institution. (See N.T. Trial, 4/13/10, at
69).




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later admitted into evidence) at trial.2 (Appellant’s Brief, at 4, 5). The man

in the photograph was shown to be having sexual contact (essentially

fellatio) with one of the minor victims.

       The man was naked, but his face was not visible. (See id. at 6; PCRA

Ct. Op. at 2; Appellant’s Rule 1925(b) statement, 11/3/14). Ms. Alexinas,

the girlfriend/mother, testified that Appellant instructed her not to show his

face in the photographs.        (See N.T. Trial, 4/13/10, at 42).   Nevertheless,

two Commonwealth witnesses, Ms. Alexinas and Appellant’s ex-wife, Carolee

Gifford, identified the man in the photographs as Appellant. (See PCRA Ct.

Op., at 2).

       Additionally, Detective Roy Calarese of the Chester County District

Attorney’s Office, qualified as an expert in the field of computer forensics

and data recovery, testified that he was able to retrieve email conversations

between Appellant and Ms. Alexinas on Appellant’s computer.            (See N.T.

Trial, 4/14/10, at 23-85). The emails included explicit, graphic discussions

about Appellant having, and having had, oral sex with Ms. Alexinas’ older
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2
  Neither the photograph showing the allegedly “deformed toe”, nor any of
the other photographs admitted at trial or mentioned in the briefs or PCRA
court opinion, is included in the record before us. Accordingly, we have no
visual frame of reference for our review of the arguments involving the
photographs, and rely exclusively on the verbal descriptions included in the
record. “[T]he ultimate responsibility of ensuring that the transmitted
record is complete rests squarely upon the appellant and not upon the
appellate courts.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.
2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citing Pa.R.A.P. 1931).




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daughter.    Detective Calarese also retrieved child pornography, including

photographs of the victims in this case, and a montage of the child

pornography on Appellant’s equipment.

      After a colloquy with the trial court, and conferring with counsel,

Appellant exercised his constitutional right not to testify at trial. (See id. at

95-98). Appellant also confirmed his agreement with counsel’s decision not

to present any other witnesses or evidence. (See id. at 98).

      After his conviction, the trial court determined Appellant to be a

sexually violent predator.       (See Notice of Registration Requirements,

12/16/10).    On the same day, December 16, 2010, the court sentenced

Appellant to an aggregate term of not less than twenty-five nor more than

fifty years’ incarceration in a state correctional institution.

      Appellant filed a post-trial motion, which the court denied.         (See

Order, 3/21/11).     On direct appeal, this Court affirmed the judgment of

sentence in an unpublished memorandum. (See Commonwealth v. G.E.,

55 A.3d 144 (Pa. Super. 2012)). Our Supreme Court denied allowance of

appeal, on June 19, 2013.       (See Commonwealth v. Elkington, 69 A.3d

242 (Pa. 2013)).       Appellant timely filed a pro se PCRA petition, on

September 11, 2013.        The PCRA court appointed counsel, who filed an

amended petition.




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       The PCRA court held a hearing on June 2, 2014.3 The “deformed toe”

ineffectiveness question in this appeal was the only issue addressed at the

hearing.4     (See N.T. PCRA Hearing, 6/02/14, at 11).    On September 23,

2014, the court issued an order, with an opinion, denying the amended

petition. On October 17, 2014 Appellant filed a timely notice of appeal.5

       Appellant raises one question for our review.

             Whether trial counsel was ineffective for failing to
       introduce photographs of Appellant’s feet to prove he did not
       have the same deformed toe as the man identified in a
       photograph that was having sex with a victim in the case?

(Appellant’s Brief, at 4).

       Appellant argues that the Commonwealth witnesses who identified him

as the man in the photograph did so on the basis that he had the same

“deformed” toe as the man in the picture. (Appellant’s Brief, at 5, 6). He

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3
 To avoid confusion, we note that the date of the hearing transcript, May 2,
2014, is inconsistent with the docket entries, and the date noted in the PCRA
court opinion. We accept the date listed in the docket and confirmed by the
court. Moreover, we note that the date discrepancy would have no impact
on any of the facts or issues material to the appeal, or to our disposition.
4
   Counsel withdrew another claim (involving alleged discrepancies in date
and time testimony). The PCRA court also permitted Appellant to identify
various items he alleged were not provided in discovery. (See N.T. PCRA
Hearing, 6/02/14, at 4). The Commonwealth provided certain materials that
day. The court asked Appellant’s counsel if any of the remaining requested
items were relevant. Counsel replied no. (See id. at 7).
5
  Appellant timely filed a statement of errors, on November 3, 2014. See
Pa.R.A.P. 1925(b). The PCRA court filed a Rule 1925(a) opinion, referencing
its order and opinion of September 23, 2014. See Pa.R.A.P. 1925(a).



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maintains   that   “[t]rial   counsel   was   ineffective   for   not   introducing

photographs of the Appellant’s feet to prove he did not have a disfigured

toe.” (Id. at 5). We disagree.

            Our standard and scope of review for the denial of a PCRA
     petition is well-settled.

              [A]n appellate court reviews the PCRA court’s
        findings of fact to determine whether they are supported
        by the record, and reviews its conclusions of law to
        determine whether they are free from legal error. The
        scope of review is limited to the findings of the PCRA court
        and the evidence of record, viewed in the light most
        favorable to the prevailing party at the trial level.

     Commonwealth v. Spotz, ––– Pa. ––––, 84 A.3d 294, 311
     (2014) (citations and internal quotation marks omitted).

               To establish trial counsel’s ineffectiveness, a
        petitioner must demonstrate: (1) the underlying claim has
        arguable merit; (2) counsel had no reasonable basis for
        the course of action or inaction chosen; and (3) counsel’s
        action or inaction prejudiced the petitioner.        See
        Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
        2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Pierce,
        515 Pa. 153, 527 A.2d 973 (1987).

     Id. at 303 n. 3. Furthermore,

               [A] PCRA petitioner will be granted relief only when
        he proves, by a preponderance of the evidence, that his
        conviction or sentence resulted from the ineffective
        assistance of counsel which, in the circumstances of the
        particular case, so undermined the truth-determining
        process that no reliable adjudication of guilt or innocence
        could have taken place.      42 Pa.C.S. § 9543(a)(2)(ii).
        Counsel is presumed effective, and to rebut that
        presumption, the PCRA petitioner must demonstrate that
        counsel’s performance was deficient and that such
        deficiency prejudiced him.



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     Id. at 311–12 (most case citations, internal quotation marks and
     other punctuation omitted). “Counsel’s assistance is deemed
     constitutionally effective once this Court determines that the
     defendant has not established any one of the prongs of the
     ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398,
     406 (Pa. Super. 2008) (citations and internal quotation marks
     omitted) (emphasis in original). Additionally,

                                   *     *   *

       This Court analyzes PCRA appeals “in the light most
       favorable to the prevailing party at the PCRA level.”
       [Commonwealth v.] Rykard, [55 A.3d 1177,] 1183 [(Pa.
       Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 631
       (2013) (footnote omitted).] (emphasis added); see also
       Spotz, supra at 311 (“The scope of review is limited to
       the findings of the PCRA court and the evidence of record,
       viewed in the light most favorable to the prevailing
       party at the trial level.”) (emphasis added).

          Our Supreme Court has explained:

              As a general and practical matter, it is more difficult
       for a defendant to prevail on a claim litigated through the
       lens of counsel ineffectiveness, rather than as a preserved
       claim of trial court error. This Court has addressed the
       difference as follows:

              [A] defendant [raising a claim of ineffective
       assistance of counsel] is required to show actual prejudice;
       that is, that counsel’s ineffectiveness was of such
       magnitude that it ‘could have reasonably had an adverse
       effect on the outcome of the proceedings.’ Pierce, 515
       Pa. at 162, 527 A.2d at 977. This standard is different
       from the harmless error analysis that is typically applied
       when determining whether the trial court erred in taking or
       failing to take certain action. The harmless error standard,
       as set forth by this Court in Commonwealth v. Story,
       476 Pa. [391], 409, 383 A.2d [155], 164 [ (1978) ]
       (citations omitted), states that “[w]henever there is a
       ‘reasonable possibility’ that an error ‘might have
       contributed to the conviction,’ the error is not harmless.”
       This standard, which places the burden on the

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         Commonwealth to show that the error did not contribute to
         the verdict beyond a reasonable doubt, is a lesser standard
         than the Pierce prejudice standard, which requires the
         defendant to show that counsel’s conduct had an actual
         adverse effect on the outcome of the proceedings. This
         distinction appropriately arises from the difference
         between a direct attack on error occurring at trial and a
         collateral attack on the stewardship of counsel. In a
         collateral attack, we first presume that counsel is effective,
         and that not every error by counsel can or will result in a
         constitutional violation of a defendant’s Sixth Amendment
         right to counsel. Pierce, supra.

Commonwealth v. Freeland, 106 A.3d 768, 775-76 (Pa. Super. 2014)

(emphasis in original; some citations omitted). “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.

However, this Court applies a de novo standard of review to the PCRA

court’s legal conclusions.”     Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (citations omitted). With these legal principles in mind, we

review Appellant’s claim.

      Preliminarily, we note that Appellant’s issue and his argument

mischaracterize the evidence of record. First, Appellant merely makes the

bald assertion that “the foot of the man in the photograph had a deformed

toe.” (Appellant’s Brief, at 6). He fails to identify where in the record the

evidence establishes that the man in the photograph had a “deformed” or

“disfigured” toe.   Therefore, he fails to comply with Pennsylvania Rule of

Appellate Procedure 2119 which in pertinent part provides:

            Reference to record. If reference is made to the . . .
      evidence, . . . or any other matter appearing in the record, the
      argument must set forth, in immediate connection therewith, or

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      in a footnote thereto, a reference to the place in the record
      where the matter referred to appears (see Rule 2132)
      (references in briefs to the record).

Pa.R.A.P. 2119(c).

      Furthermore, on independent review, we find no support in the record

for the claim that the identification of Appellant as the faceless man in the

photographs presented to the witnesses was based on a “deformed” toe.

(Appellant’s Brief, at 5, 6).

      To the contrary, our review confirms that Ms. Alexinas, Appellant’s

former girlfriend and the mother of the victims, identified him as the man in

the photograph, “[b]ecause of his leg and the way his penis is.” (N.T. Trial,

4/13/10, at 71).     Similarly, Carolee Gifford, Appellant’s ex-wife, confirmed

her identification of Appellant as the man in the photograph as follows: “I

recognize the legs and the genitalia, and it is [Appellant’s] arms and his roll

of fat.”   (N.T. Trial, 4/14/10, at 14).     On cross-examination, Ms. Gifford

continued to maintain the basis of her identification, as follows:

            [Defense Counsel:]      You indicated that one of the
      things that identified that picture is [Appellant’s] roll of fat, I
      think you said?

             [Ms. Gifford:]     There was a roll of fat; yes.

            Q.    But you will agree with me that there is no face in
      these pictures?

             A.    Yes.

            Q.     So you’re identifying it [sic] based on the legs
      looking like what you remember your husband’s legs looked like?


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               A.   And genitalia.

               Q.   Right.
(Id. at 17).

      The only discussion about Appellant’s toes appears to be during further

cross-examination, when the following exchange occurred:

           Q.     When the detectives came to you to interview you,
      they showed you ─ did they ask you anything about your ex-
      husband’s feet?

               A.   Yes.

           Q.     They asked you whether or not there was anything
      unusual, any unusual characteristics about his feet?

               A.   Yes.

            Q.   You told the detectives you could not remember
      anything unusual about his feet?

            A.      If that is what the record shows, that must be what I
      said; yes.

            Q.    They asked you whether or not you recall if his
      second toe was longer than the first toe. Do you remember
      that?

               A.   Yes.

               Q.   And you said: I don’t know?

               A.   Right.

               Q.   [You’re] agreeing with me on that?

               A.   Yes.

(Id. at 19).




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       Therefore, the only pertinent evidence of record tends to show that

Appellant did not have a deformed toe at all. To the contrary, the ex-wife

testified she told the police there was nothing unusual about his feet, and

did not even testify that Appellant’s second toe was longer than the “big”

toe.   Furthermore, importantly, neither woman based her identification of

Appellant on the allegedly deformed toe. (See N.T. Trial, 4/13/10, at 71;

N.T. Trial, 4/14/10, at 14). Appellant’s claim lacks any foundation.

       As a final point, we note that the PCRA court did not find Appellant

credible. (See PCRA Ct. Op., at 5). We defer to the PCRA court’s credibility

determinations which are supported by the record. Appellant’s claim has no

arguable merit.

       The PCRA court correctly noted that it need find only one prong which

Appellant failed to meet to deny his ineffectiveness claim. (See id. at 5);

see also Rolan, supra at 406.

       Nevertheless, we note for completeness that Appellant failed to prove

that trial counsel had no reasonable basis for her strategic decision not to

pursue the “deformed” toe assertion. To the contrary, at the PCRA hearing,

counsel gave her assessment that in view of the eyewitness testimony

(which included two identifications) and the forensic evidence linking

Appellant to the acts at issue, she didn’t think it was a good strategy to

proceed with a picture of the foot.   (See N.T. PCRA Hearing, 6/02/14, at

29).


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       “Where matters of strategy and tactics are concerned, a finding that a

chosen strategy lacked a reasonable basis is not warranted unless it can be

concluded that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.”      Spotz, supra 84

A.3d at 311-12 (quotation marks, other punctuation and citation omitted).

       Here, Appellant baldly asserts that trial counsel did not have a

reasonable basis for not obtaining a photograph of his foot. (See Appellant’s

Brief, at 7). This is unsupported by reference to controlling authority, does

not refute trial counsel’s articulated strategy, and offers no argument to

establish that Appellant’s alternative offered the potential for substantially

greater success.   Appellant does not refute counsel’s reasonable basis for

the strategy she selected.

       Finally, Appellant fails to prove prejudice. “To demonstrate prejudice,

the petitioner must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceedings would have

been different. [A] reasonable probability is a probability that is sufficient to

undermine confidence in the outcome of the proceeding.” Spotz, supra 84

A.3d at 312.

       Here, Appellant’s counsel merely surmised at the PCRA hearing that

taking a photograph of the feet might have helped and would not have hurt

the case: “No harm, no foul kind of thing.” (N.T. PCRA Hearing, 6/02/14, at

39).   This amounts to no more than sheer speculation.         Mere speculation


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that a course of action proposed in hindsight would have had little

(presumed) downside is insufficient to overcome the presumption of

effectiveness, or to prove prejudice. See Spotz, supra at 84 A.3d 311-12;

Rolan, supra at 406.

      Furthermore, Appellant argues on appeal that the PCRA court noted

that the Commonwealth did not have “a compelling case.”            (Appellant’s

Brief, at 7-8).     Our review of Appellant’s citation confirms that the

assessment was not that of the court, but of PCRA counsel. (See PCRA Ct.

Op., at 3). Appellant fails to prove prejudice. His claim merits no relief.

      Our reasoning differs from that of the PCRA court. “However, we may

affirm the PCRA court’s order on any basis.” Commonwealth v. Reed, 107

A.3d 137, 144 (Pa. Super. 2014) (citation omitted).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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