J-S34034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOSHUA W. MILLER

                            Appellant              No. 1802 WDA 2013


                 Appeal from the PCRA Order October 16, 2013
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0001598-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 5, 2014

        Appellant, Joshua W. Miller, appeals from the order entered in the

Cambria County Court of Common Pleas, denying his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court set forth the relevant facts and

procedural history of this case as follows:

          [O]n November 10, 2010, following a three-day jury trial,
          [Appellant] was convicted on all counts, consisting of
          aggravated assault (F1), endangering welfare of children
          (M1), recklessly endangering another person (M2), and
          simple assault (M1). These charges were based upon
          allegations that [Appellant], while alone and while caring
          for his 8-week old child on the evening of January 14,
          2009, violently shook the child, causing him to suffer
          bleeding below his skull, known as a subdural hematoma.
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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          On March 2, 2011, [Appellant] was sentenced to an overall
          term of state incarceration of not less than 5 years, nor
          more than 10 years.[2] Thereafter, [Appellant] filed an
          appeal to the Superior Court, and his sentence was
          affirmed on June 1, 2012.

(PCRA Court Opinion, filed October 16, 2013, at 1) (internal citations

____________________________________________


2
  We are mindful of the United States Supreme Court’s recent decision in
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013), in which the Court expressly held that any fact increasing the
mandatory minimum sentence for a crime is considered an element of the
crime to be submitted to the fact-finder and found beyond a reasonable
doubt. Id. at ___, 133 S.Ct. at 2155, 2163, 186 L.Ed.2d at ___. Here, the
court imposed the mandatory minimum sentence per 42 Pa.C.S.A. § 9718
(mandating five year minimum sentence for defendant convicted of
aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) when victim is less than
thirteen years of age). Pursuant to Section 9718(c), the court determines
applicability of the mandatory minimum at sentencing by a preponderance of
the evidence (arguably in violation of Alleyne). In the present case,
however, the jury convicted Appellant of aggravated assault under 18
Pa.C.S.A. § 2702(a)(1). Additionally, there was no dispute as to the victim’s
age. Both Appellant and the Commonwealth presented evidence that the
victim was approximately eight weeks old at the time of the incident.
Further, the aggravated assault count in the criminal information indicated
the victim’s date of birth was November 17, 2008. Thus, by virtue of its
verdict convicting Appellant of aggravated assault, the jury determined
beyond a reasonable doubt that Appellant committed the offense against a
victim who was less than thirteen years old. See Commonwealth v.
Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc) (holding imposition of
mandatory minimum sentence per 42 Pa.C.S.A. § 9712.1—mandating five
year minimum sentence for defendant convicted of possession with intent to
deliver when at time of offense defendant was in physical possession or
control of firearm—was proper, where jury determined beyond reasonable
doubt that appellant possessed firearms in connection with drugs).
Therefore, we see no issue implicating the legality of Appellant’s sentence.
See Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001)
(explaining challenge to application of mandatory minimum sentence is non-
waivable challenge to legality of sentence which, assuming proper
jurisdiction, this Court can raise sua sponte).



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omitted).   On March 13, 2013, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal.   On April 17, 2013, Appellant

timely filed the current pro se PCRA petition.    The PCRA court appointed

counsel, who filed an amended petition on July 5, 2013. A hearing on the

petition took place on July 23, 2013.      Ultimately, the PCRA court denied

Appellant’s petition on October 16, 2013. On October 30, 2013, Appellant

timely filed a notice of appeal. The PCRA court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied.

      Appellant raises three issues for our review:

         WHETHER TRIAL COUNSEL…RENDERED INEFFECTIVE
         ASSISTANCE BY CONCEDING AND AGREEING TO A ONE-
         LINE STIPULATION READ TO THE JURY RELATIVE TO A
         DISCOVERY VIOLATION BY THE COMMONWEALTH?

         WHETHER TRIAL COUNSEL…RENDERED INEFFECTIVE
         ASSISTANCE BY FAILING TO OBJECT (AND THEREBY
         WAIVING THE ISSUE FOR DIRECT APPEAL) RELATIVE TO
         THE ASSISTANT DISTRICT ATTORNEY’S INFLAMMATORY
         DEMONSTRATION DURING CLOSING ARGUMENT, WHERE
         SHE MIMICKED HOLDING AND SHAKING AN INFANT,
         WHERE NO FACTS OF RECORD SUPPORTED SUCH AN
         INFERENCE?

         WHETHER APPELLATE COUNSEL…RENDERED INEFFECTIVE
         ASSISTANCE BY FAILING TO ARGUE THE SUFFICIENCY OF
         THE EVIDENCE AT TRIAL TO SUPPORT THE JURY’S
         VERDICT ON AGGRAVATED ASSAULT ON DIRECT APPEAL
         ALTHOUGH THE ISSUE WAS RAISED IN THE [RULE]
         1925[(B)] STATEMENT OF ISSUES ON APPEAL?

(Appellant’s Brief at 6).

      In his first issue, Appellant argues that as part of a pattern of

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discovery violations throughout the trial, the Commonwealth introduced an

undisclosed supplemental report concerning the Commonwealth’s pretrial

communications with the victim’s mother.       The Commonwealth introduced

the report after the mother had testified during defense counsel’s cross-

examination that she had no prior contact with the district attorney’s office.

Although the Commonwealth called the mother as a witness, Appellant

considered her a favorable witness.        Appellant points to trial counsel’s

testimony at the PCRA hearing that counsel’s cross-examination would have

been different if counsel had access to the supplemental report because the

report contradicted the mother’s testimony.      Appellant acknowledges trial

counsel requested a mistrial, which the court denied.              Nevertheless,

Appellant claims trial counsel rendered ineffective assistance by agreeing to

the following stipulation: “The Commonwealth agrees that they did not

maintain proper contact with [the victim’s mother], regarding the case

against [Appellant].”    Appellant asserts the “stipulation diminished the

meritorious issue on direct appeal that the [c]ourt erred in denying the

mistrial, because the Superior Court determined that the discovery violation

was corrected by the stipulation.”       (Appellant’s Brief at 13).    Appellant

concludes trial counsel’s ineffectiveness entitles Appellant to a new trial. We

disagree.

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of   record   supports    the   court’s


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determination     and   whether   its    decision   is   free   of     legal   error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal

denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference

to the findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),

appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).           We owe no deference,

however, to the court’s legal conclusions.      Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a post-conviction

court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa.Super. 1999), appeal

denied, 563 Pa. 659, 759 A.2d 383 (2000).

      The   law   presumes    counsel    has   rendered    effective     assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).                    When

asserting a claim of ineffective assistance of counsel, a petitioner is required

to make the following showing: (1) the underlying claim is of arguable merit;

(2) counsel had no reasonable strategic basis for his action or inaction; and,

(3) but for the errors and omissions of counsel, there is a reasonable

probability that the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326, 333 (1999).

The failure to satisfy any prong of the test for ineffectiveness will cause the

claim to fail. Williams, supra.

      “The threshold inquiry in ineffectiveness claims is whether the


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issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot

be found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa.Super. 2007), appeal

denied, 597 Pa. 715, 951 A.2d 1163 (2008) (quoting Commonwealth v.

Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)).

        Once this threshold is met we apply the “reasonable basis”
        test to determine whether counsel’s chosen course was
        designed to effectuate his client’s interests. If we conclude
        that the particular course chosen by counsel had some
        reasonable basis, our inquiry ceases and counsel’s
        assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

        Prejudice is established when [a defendant] demonstrates
        that counsel’s chosen course of action had an adverse
        effect on the outcome of the proceedings. The defendant
        must show that there is a reasonable probability that, but
        for counsel’s unprofessional errors, the result of the
        proceeding would have been different.             A reasonable
        probability is a probability sufficient to undermine
        confidence in the outcome. In [Kimball, supra], we held
        that a “criminal defendant alleging prejudice must show
        that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883

(2002) (some internal citations and quotation marks omitted).

     Pennsylvania Rule of Criminal Procedure 573 provides:

        Rule 573. Pretrial Discovery and inspection

                                 *    *    *

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           (B)    Disclosure by the Commonwealth

           (1) Mandatory. In all court cases, on request by
           the defendant, and subject to any protective order
           which the Commonwealth might obtain under this
           rule, the Commonwealth shall disclose to the
           defendant’s attorney all of the following requested
           items or information, provided they are material to
           the instant case. The Commonwealth shall, when
           applicable, permit the defendant’s attorney to
           inspect and copy or photograph such items.

              (a) Any evidence favorable to the accused
              that is material either to guilt or to
              punishment, and is within the possession or
              control of the attorney for the Commonwealth;

                                *    *    *

Pa.R.Crim.P. 573(B)(1)(a).

        If a discovery violation occurs, the court may grant a trial
        continuance or prohibit the introduction of the evidence or
        may enter any order it deems just under the
        circumstances. The trial court has broad discretion in
        choosing the appropriate remedy for a discovery violation.
        Our scope of review is whether the court abused its
        discretion in not excluding evidence pursuant to Rule
        573(E).     A defendant seeking relief from a discovery
        violation must demonstrate prejudice.        A violation of
        discovery does not automatically entitle appellant to a new
        trial. Rather, an appellant must demonstrate how a more
        timely disclosure would have affected his trial strategy or
        how he was otherwise prejudiced by the alleged late
        disclosure.

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa.Super. 2003), appeal

denied, 577 Pa. 732, 848 A.2d 927 (2004) (internal citations and quotation

marks omitted).




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      Instantly, trial counsel strenuously argued for a mistrial based on the

Commonwealth’s alleged discovery violation.      Trial counsel agreed to the

stipulation in question only after the court denied counsel’s motion for a

mistrial. The court also ruled out a curative instruction on the basis that it

would confuse the jury.    At the PCRA hearing, trial counsel explained her

actions as follows:

          [T]he mistrial was denied. So my position at that point
          was do whatever we can to help correct the situation so
          that the information that was included in that
          supplemental report would go to the jury possibly
          explained.

(N.T. PCRA Hearing, 7/23/13, at 16). In light of the court’s refusal to grant

a mistrial or curative instruction, counsel pursued another means of

mitigating the perceived harm caused by the Commonwealth’s production of

the supplemental report.    Regardless of what effect the stipulation might

have had on Appellant’s chances of successfully appealing the court’s ruling,

counsel had a reasonable strategic basis for agreeing to the stipulation to

benefit Appellant at trial. See Kimball, supra. Moreover, the stipulation

was not essential to this Court’s rejection of Appellant’s claim on direct

appeal:

          Here, [Appellant] has failed to establish that he was
          prejudiced by the Commonwealth’s discovery
          violation. When asked by the Commonwealth on redirect
          whether she had been contacted by Detective Wagner,
          [the victim’s mother] responded that she didn’t remember.
          Thus, the Commonwealth’s use of the document to
          impeach [the mother’s] credibility was de minimus as it did
          not directly contradict any of her statements.

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        Additionally,    the     record     reveals     that    the
        Commonwealth did not intentionally withhold the
        supplemental report, but that it was inadvertently not
        printed from Detective Wagner’s [c]omputer and was not
        provided to the Commonwealth until the week before trial.
        Nevertheless, the trial court read the following stipulation
        to the jury: “The Commonwealth agrees that they did not
        maintain proper contact with [the victim’s mother],
        regarding the case against [Appellant].”

        Because the Commonwealths’ discovery violation did
        not cause [Appellant] prejudice and was corrected by a
        stipulation to the jury, we hold that the trial court did not
        abuse its discretion in refusing to grant [Appellant’s]
        motion for a mistrial.

Commonwealth v. Miller, No. 672 WDA 2011, unpublished memorandum

at 12 (Pa.Super. filed June 1, 2012) (footnote omitted) (emphasis added).

Appellant has not shown a reasonable probability that the outcome of the

trial or the appeal would have been different, absent the stipulation. See

Chambers, supra.       Accordingly, Appellant fails to satisfy the test for

ineffectiveness of counsel on this ground. See Williams, supra.

     In his second issue, Appellant asserts the Commonwealth presented a

theatrical evidentiary demonstration during its closing argument, which

mimicked a person violently shaking a child.        Appellant contends this

demonstration put facts before the jury which were not in evidence and

invited the jury to reach a verdict based on shock and speculation instead of

an objective evaluation of the evidence.   Appellant concludes trial counsel

was ineffective for failing to object to the Commonwealth’s inflammatory




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conduct during closing argument, and this Court should reverse the order of

the PCRA court and remand for a new trial. We disagree.

     The following principles govern our review of a claim of prosecutorial

misconduct:

        In considering this claim, our attention is focused on
        whether the defendant was deprived of a fair trial, not a
        perfect one.

        Not every unwise remark on a prosecutor’s part constitutes
        reversible error. Indeed, the test is a relatively stringent
        one. Generally speaking, a prosecutor’s comments do not
        constitute reversible error unless the unavoidable effect of
        such comments would be to prejudice the jury, forming in
        their minds fixed bias and hostility toward [the defendant]
        so that they could not weigh the evidence objectively and
        render a true verdict. Prosecutorial misconduct, however,
        will not be found where comments were based on evidence
        or proper inferences therefrom or were only oratorical flair.
        In order to evaluate whether comments were improper, we
        must look to the context in which they were made.

Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal

denied, 593 Pa. 726, 928 A.2d 1289 (2007). A new trial is required “only

when a prosecutor’s improper remarks are prejudicial, i.e., when they are of

such a nature or delivered in such a manner that they may reasonably be

said to have deprived the defendant of a fair and impartial trial.”

Commonwealth v. Davis, 554 A.2d 104, 111 (Pa.Super. 1989), appeal

denied, 524 Pa. 617, 571 A.2d 380 (1989).

     “A prosecutor has great discretion during closing argument. Indeed,

closing ‘argument’ is just that: argument.” Commonwealth v. Brown, 911

A.2d 576, 580 (Pa.Super. 2006), appeal denied, 591 Pa. 722, 920 A.2d 830

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(2007). A prosecutor, however, must limit statements to facts in evidence

and reasonable inferences therefrom and must not express personal opinions

on a defendant’s guilt or credibility. Commonwealth v. Bricker, 506 Pa.

571, 579, 487 A.2d 346, 349 (1985). “[T]he prosecutor may comment on

the credibility of witnesses. Further, a prosecutor is allowed to respond to

defense arguments with logical force and vigor.”                 Commonwealth v.

Chmiel, 585 Pa. 547, 620, 889 A.2d 501, 544 (2005), cert. denied, 549

U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006) (internal citations omitted).

      Trial counsel will not be deemed ineffective for failing to object where

a   prosecutor’s   remarks    are   “within       the    ambit   of     fair   comment.”

Commonwealth v. Thomas, 539 A.2d 829, 836 (Pa.Super. 1988), appeal

denied, 520 Pa. 604, 553 A.2d 967 (1998).               Further, in cases where the

outcome is controlled by credibility determinations, a prosecutor is permitted

to make comments reinforcing the conflicting accounts facing the jury.

Commonwealth v. Judy, 978 A.2d 1015, 1024 (Pa.Super. 2009). If the

court instructs the jury that closing remarks are not evidence in the case, a

presumption arises that the jury has followed the court’s instructions.

Commonwealth v. Baker, 531 Pa. 541, 559, 614 A.2d 663, 672 (1992).

      Instantly,   Appellant’s   brief     does    not    cite   that      part   of   the

Commonwealth’s      closing   argument       where      the   alleged     demonstration

occurred, and our review of the trial transcript was unavailing. Moreover, in

its opinion, the PCRA court reasoned as follows:


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          At trial, the Commonwealth’s expert, Dr. Janet E. Squires,
          opined that the victim endured head trauma/acute
          bleeding caused by shearing/shaking. She testified that
          “at some point there was shaking, something happened,
          and this baby was acutely abnormal, and the only thing
          that makes sense to me is that some other person did
          this.” Further, she opined that “this is an inflicted injury[;]
          [...] we call it Abusive Head Trauma.” Given this evidence,
          we believe that the prosecutor could fairly comment on the
          same, and suggest what inferences the jury should draw
          therefrom.

          Additionally, we agree with the Commonwealth’s
          contention that [Appellant] failed to present any witness at
          the PCRA hearing to show that the jury was inflamed by
          the prosecutor’s conduct.         Thus, we believe that
          [Appellant] has not satisfied either the arguable merit
          prong or prejudice prong to justify PCRA relief.

(PCRA Court Opinion at 7) (internal citations omitted).         We agree.   The

prosecutor’s alleged demonstration would be consistent with the testimony

of the Commonwealth’s expert witness, who opined that the baby’s injuries

indicated someone had shaken the baby. The prosecutor did not put new

facts before the jury.     See Harris, supra.       Further, the court properly

instructed the jury that closing arguments were not evidence. See Baker,

supra. Accordingly, trial counsel was not ineffective for failing to object to

the prosecutor’s actions during closing argument, and this claim lacks

arguable merit. See Thomas, supra.

        In his third issue, Appellant argues the trial consisted of a “battle of

the experts,” where the Commonwealth’s expert concluded the only

reasonable explanation for the baby’s injury was that somebody shook the

baby.     Appellant claims the jury convicted him entirely on circumstantial

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evidence, “given the lack of witnesses, statements, or visible bruising or

injury to the child.”   (Appellant’s Brief at 17).     Appellant contends the

aggravated assault conviction was worthy of a challenge on direct appeal

because the evidence was too weak and inconclusive to sustain the

conviction. Appellant points out that appellate counsel raised a sufficiency of

the evidence claim in Appellant’s Rule 1925(b) statement.         Nevertheless,

appellate counsel ultimately declined to pursue the claim on direct appeal.

Appellant concludes appellate counsel was ineffective for failing to advance a

sufficiency of the evidence claim with respect to the aggravated assault

conviction. We disagree.

      The following principles of review apply to challenges to the sufficiency

of evidence:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [finder] of fact
         while passing upon the credibility of witnesses and the

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          weight of the evidence produced, is free to believe all, part
          or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

     Instantly, the trial court’s Rule 1925(a) opinion on direct appeal set

forth the Commonwealth’s evidence against Appellant as follows:

          To substantiate these charges, the record reveals that the
          Commonwealth presented the testimony of several
          witnesses, who all testified that the victim had been born
          healthy and, apart from some constipation, never
          experienced any health problems, not even a cold.
          However, testimony was also presented that on the
          evening of January 14, 2009, the 8-week old victim was
          rushed to the Conemaugh Hospital Emergency Room by
          ambulance, following [Appellant’s] call to 911 to report his
          son’s limpness, unresponsiveness and shallow breathing.

          Specifically, the Commonwealth presented evidence that
          on the day of January 14, 2009, the victim was healthy
          and that everything was fine. Although [Appellant] did not
          normally provide childcare for his son during the early
          evening hours, [Appellant] did so on this day, and when he
          finished working for the day, he took the baby-victim to
          visit the baby’s mother, Amy McCullough, at Eat n’ Park,
          her place of employment. During his visit at Eat n’ Park,
          Ms. McCullough and her co-workers took turns holding and
          feeding the baby, and he appeared to be acting normally.
          [Appellant] then took the baby home, and while he was
          alone with him, the baby became very fussy and screamed
          and cried for an hour and a half. [Appellant] tried to feed
          him and give him a bath, but nothing would soothe the
          child. Evidence was then presented that the child suddenly
          went limp and started gasping for air, and [Appellant]
          called 911.

          While at Conemaugh Hospital, the victim was intubated,
          received a blood transfusion, and was placed on anti-

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           seizure medication. Because of his critical condition, he
           was transferred to Children’s Hospital in Pittsburgh. Dr.
           Janet E. Squires, a board-certified pediatrician who is also
           board-certified in pediatric child abuse, was consulted due
           to concerns of child abuse. Dr. Squires examined the
           victim, and concluded that the victim had been physically
           abused, evidenced by head trauma, a subdural hematoma,
           and retinal hemorrhaging in all four quadrants of both
           eyeballs. She also opined that the injuries were caused by
           a shearing or rotational injury from movement, such as the
           shaking of the child.

(Trial Court Opinion, filed June 6, 2011, at 3-4) (internal citations

omitted).    Moreover, in its opinion, the PCRA court reasoned as

follows:

           At the PCRA hearing, appellate counsel testified that based
           on his experience, issues relative to weight and sufficiency
           are less likely to obtain any kind of relief. He also testified
           that here, with aggravated assault, there was no doubt as
           to the Commonwealth’s theory of the case, and that the
           jury was free to evaluate the credibility of Dr. Squires’
           testimony as to aggravated assault.           Additionally, he
           believed it was important to only present issues of primacy
           on appeal, and not brief too many issues.

           Appellate counsel’s views relative to not advancing
           unmeritorious appellate issues is supported in law. Our
           Supreme Court has [stated] that “[i]t is not necessary to
           raise patently unavailing matters in order to ward off fears
           of a later finding of ineffectiveness; a good attorney will
           not disguise and thus weaken good points by camouflaging
           them in a flurry of makeweight issues which clearly have
           no merit.” Commonwealth v. Williams, 581 Pa. 57, 65
           n.5, 863 A.2d 505, 510 n.5 (2004).

           Moreover, here, prior to appearing before [the] Superior
           Court, appellate counsel presumably read this [c]ourt’s
           Rule 1925(a) [o]pinion, wherein we set forth the ample
           evidence of record to sustain the aggravated assault
           conviction. Additionally, we opined that the defense and
           the Commonwealth presented conflicting medical expert

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         opinions as to what had transpired on the date in question,
         that the jury was free to assess the experts’ credibility,
         and that the jury rendered its decision of guilt in
         accordance with its observations and assessment. Given
         our extensive opinion on this issue, we believe that it was
         reasonable for appellate counsel to forego his sufficiency of
         the evidence arguments before the Superior Court in order
         to advance more compelling claims.

(PCRA Court Opinion at 8-9) (some internal citations omitted). We accept

the court’s analysis. Appellant’s challenge to the sufficiency of the evidence

for the aggravated assault conviction under the rubric of appellate counsel’s

ineffectiveness lacks arguable merit; appellate counsel was not ineffective

for declining to pursue this meritless claim. See Taylor, supra; Kimball,

supra.   Moreover, to the extent Appellant argues there was conflicting

testimony, this claim goes to the weight of the evidence, not its sufficiency.

See Jones, supra (stating finder of fact, while passing upon credibility of

witnesses and weight of evidence produced, is free to believe all, part or

none of evidence). Based upon the foregoing, we affirm the order denying

PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/2014


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