J-S10040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DERRICK WILSON MCCRAY                      :
                                               :
                       Appellant               :      No. 2441 EDA 2018

               Appeal from the PCRA Order Entered July 11, 2018
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0003589-2014


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                           FILED APRIL 09, 2019

        Appellant, Derrick Wilson McCray, appeals from the order entered in the

Bucks County Court of Common Pleas, which denied his first petition filed

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

        The PCRA court accurately set forth the relevant facts and procedural

history of this case as follows:

          On November 14, 2014, following a three-day jury trial,
          Appellant was convicted of Rape—Threat of Forcible
          Compulsion, Criminal Trespass, Indecent Assault—Threat of
          Forcible Compulsion, False Imprisonment, Simple Assault,
          and Possession of Instrument of Crime.      The charges
          stemmed from an incident that occurred on March 18, 2014.

          On March 18, 2014, [Victim] resided in…Bucks County, with
          her parents, and her daughter. [Victim] and Appellant were
          married in 2012 and had a daughter in August 2013.
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       However, in December 2013, [Victim] moved out and filed
       for divorce. She stated that even though she wanted a
       divorce, she and Appellant continued to communicate in an
       attempt to co-parent their daughter.

       [Victim] typically worked from home…. Her job also entailed
       conducting on site interviews for compliance with
       background checks. On March 18, 2014, [Victim] had five
       interviews scheduled and had to dress professionally that
       day. Around 6:30 a.m., she dropped her daughter off at
       daycare and then returned home to get ready for work.

       While she was upstairs getting ready, [Victim] stated that
       she heard a noise downstairs. She thought it may have just
       been the cats because both her parents had left for work.
       After she finished getting ready, [Victim] began to walk
       downstairs. Appellant was standing at the bottom of the
       stairs with a knife in his hand and pointed it towards
       [Victim’s] chest. Appellant told [Victim] that he did not want
       to hurt her, told her to turn around and go back upstairs to
       her bedroom.

       Appellant followed her to her bedroom and instructed
       [Victim] to take off her clothes. As she began to comply,
       she stated that she did not want to do this. Appellant put
       the knife to one of her blouse buttons, flicked the button,
       and instructed her to do what he said and she would make
       it out alive. After [Victim] undressed, Appellant instructed
       her to turn around and bend over. He then put his penis in
       her vagina. After a few minutes, he had [Victim] turn
       around and get on her knees, and then he ejaculated onto
       her face. [Victim] asked for Appellant to get her a tissue,
       which she used to wipe off her face, and asked to get
       dressed.

       [Victim] remained in fear that Appellant might continue to
       harm her so she began to talk about their daughter. She
       also gave him a picture of their daughter that was on her
       bedroom mirror. While talking, Appellant told [Victim] that
       he got the knife from a friend’s house and had entered the
       house through the basement window in the laundry room.
       Appellant also stated that he was working and living with his
       girlfriend in …, PA. [Victim] stated that Appellant was
       wearing a tan cartwright hat, gray hoodie that had fur

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       around the hood, light gray jeans, and blue gloves. [Victim]
       persuaded Appellant to leave before her parents returned
       home. As Appellant was leaving, [Victim] let him take a
       water bottle that was on the kitchen table and she also saw
       him grab a black bag off the recliner. After Appellant left,
       she called 911 to report the incident.

       …Police responded to the scene and [Victim] agreed to be
       transported to the …Hospital for a SANE exam. [Victim] was
       then transported to the…Police Department to provide her
       statement.

       During the investigation on March 18, 2014, the…police
       searched [Victim’s] parents’ house for evidence. They
       collected a tissue on the dresser that [Victim] stated she
       used to wipe her face, and also swabbed for fingerprints.
       Later that afternoon, the police contacted Appellant and he
       agreed to come to the station for questioning. Appellant
       also consented to a search of his vehicle and his girlfriend’s
       house. In the car, the police found a water bottle, knives,
       and the picture of the daughter of Appellant and [V]ictim.
       After searching Appellant’s girlfriend’s house, the police did
       not find the sweater, hoodie with fur around the collar,
       jeans, or black bag that [V]ictim described.

       At trial, the Commonwealth and Appellant stipulated to the
       fact that as part of the evidence the police collected, a tissue
       from the bedroom dresser contained spermatozoa that
       matched the DNA of [Appellant]. No DNA was detected for
       all other items that were tested: jeans found at Appellant’s
       girlfriend’s house, a knife found in Appellant’s car, a swab
       from the basement window at [Victim’s] parents’ house, and
       a swab from a glass patio.

       Appellant testified during trial that the incident on March 18,
       2014, was arranged and consensual. Appellant testified that
       [Victim] agreed to let Appellant meet her at their daughter’s
       daycare so Appellant could see his daughter for a few
       minutes. After [Victim] took their daughter into daycare,
       Appellant stated that he needed to talk to [Victim] about a
       few things, and they agreed to go back to her parents’
       house.    Appellant testified that he and [Victim] had
       consensual sex, and he entered the house through the front
       door. Appellant testified he left because [Victim] was

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       concerned her parents might return home from work.
       Appellant then testified he went back to his girlfriend’s
       house and told his girlfriend where he went that morning.

       Later that afternoon, the police called Appellant because
       they had a concern regarding [Victim]. Appellant agreed to
       go to the police station and his girlfriend accompanied him.
       At first, Appellant lied to the police, stating that he did not
       see [Victim] that day because he knew that he was not
       supposed to have contact with her. After the police told him
       that they knew he had contact with her, broke into her
       house and raped her with a knife, Appellant then spoke to
       the police. He testified that he told the police that [Victim]
       willingly arranged to meet him at their daughter’s daycare,
       they went back to her house where she let him in through
       the front door, and they had consensual sex.

       [G.M.], Appellant’s girlfriend at the time of the incident,
       testified that Appellant had been staying at her house and
       got up early on March 18, 2014, to go to work. [G.M.]
       testified that Appellant returned home around 7:40 a.m.
       and told her that he was not needed for work, so he cleaned
       his car. The police contacted [G.M.] in an attempt to reach
       Appellant, and she put Appellant on the phone and then
       accompanied Appellant to the police station. The police
       indicated to [G.M.] that they were looking for a black bag.
       She stated that she did not know anything about it. [G.M.]
       also stated that the first time she saw the picture of
       Appellant’s daughter was on March 18, 2014—the same day
       [V]ictim testified to giving it to Appellant.

       A few days later, [G.M.] then contacted the police regarding
       a black bag found in her house. [G.M.]’s grandfather who
       also resides with her, testified that at the end of March
       2014, while he was doing laundry, he knocked something
       behind the washing machine. After moving the machine
       out, [G.M.’s grandfather] found a white plastic bag
       containing clothes hidden behind the dryer and sitting on
       top of the dryer vent hose. [He] stated that he thought
       nothing about it because his grandchildren have a habit of
       dropping their stuff off to be washed and stuff does get
       knocked off. [G.M.’s grandfather] testified that he dumped
       the clothing out of the bag into the washer and there was a
       “jacket with a hood, fur, and a pair of jeans.” [He] washed

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       the clothing because he thought they were his grandson’s
       clothes.

       [G.M.’s grandfather] contacted [G.M.] when he also noticed
       a black satchel fall out of the white bag. [G.M.] contacted
       the police who came to the house to collect the items.
       Appellant testified that he believed that [G.M.] lied when
       she testified that Appellant told her he had work the
       morning of March 18, 2014, and returned by 7:40 a.m.
       because he wasn’t needed. In addition, Appellant believes
       that someone, most likely [G.M.], put the clothes behind the
       washer and dryer to get him.

       [O]n March 18, 2014, Appellant had a no contact order with
       [V]ictim. This no contact order and temporary Protection
       from Abuse Order arose from an incident that occurred on
       February 14, 2014.

       On February 14, 2014, [Victim] agreed to help Appellant pay
       the bill for his phone. They arranged to meet at their old
       apartment where Appellant was still living.          Appellant
       wanted to spend some time with [Victim], and she agreed
       to work from the [a]partment that day. Both Appellant and
       [Victim] testified that they communicated after [Victim]
       moved out and filed for divorce. On February 14, 2014,
       Appellant and [Victim] were in communication and Appellant
       left to run some errands. [Victim] left the apartment that
       afternoon but soon returned to retrieve the cat litter she had
       left there.

       Appellant was in the apartment when [Victim] returned to
       get the bags. He asked [Victim] to spend more time with
       him so they could work things out and not get a divorce.
       [Victim] stated, “No, I can’t. I have to go” and began to
       walk around Appellant to leave. As she walked by, Appellant
       wrapped his arm around her throat, covered her nose and
       mouth with his other hand, and threw her to the ground.
       Appellant straddled [Victim] and stated that she was not
       going to leave him, he was not going to let her leave, and
       that she could not leave him. [Victim] was able to get
       Appellant’s hands off her face to breathe and was able to
       get halfway up off the ground.

       However, Appellant again wrapped his arm around her

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       throat, covered her nose and mouth, and dragged her down
       the hallway into the bathroom. After [Victim] was able to
       breathe again, she was able to convince Appellant to let her
       go and not hurt her. [Victim] then began to leave the room
       and walked down the hallway, but Appellant, for a third
       time, grabbed her from behind and dragged her into the
       bedroom. [Victim] begged [Appellant] to let her go and
       stated that she would not call the cops. [Victim] also told
       Appellant that she needed to get their daughter from
       daycare and would bring her back so they could be a family.

       [Victim] was then able to leave, drive to a nearby parking
       lot, and call 911. [Victim] spoke to the police, filed a report,
       and her neck bruises were photographed. Appellant was
       criminally charged with assaulting [Victim] during this
       incident. The Montgomery County Court of Common Pleas
       entered a temporary Protection from Abuse Order, where
       Appellant was ordered not to have contact with [Victim]. In
       order to have bail set, Appellant had to abide by the no
       contact order. This no contact order and temporary PFA
       were in effect at the time of the March 18, 2014 incident
       that was prosecuted within Bucks County.

                                 *    *    *

       For the criminal charges that arose in Bucks County
       [regarding the March 18, 2014 incident], Appellant was
       convicted by a jury. He was represented by [the] Bucks
       County Public Defender…during pre-trial motions, trial,
       sentencing, and the filing of post-sentence motions. …
       Appellant was sentenced on March 23, 2015, to serve an
       aggregate sentence of…nine (9) to twenty-four (24) years
       in a state correctional institution.

       Appellant subsequently filed timely Post-Sentence Motions
       on March 30, 2015[, which were denied by operation of law]
       on August 20, 2015. On September 14, 2016, the Superior
       Court affirmed [the judgment of sentence].             The
       Pennsylvania Supreme Court denied Appellant’s Petition for
       Allowance of Appeal [on March 7, 2017.                See
       Commonwealth v. McCray, 158 A.3d 178 (Pa.Super.
       2016), appeal denied, 641 Pa. 274, 167 A.3d 711 (2017)].

       Appellant then [timely] filed his first pro se [PCRA] Petition

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           on May 30, 2017. He was appointed counsel and an
           amended PCRA was filed [on] November 13, 2017. New
           counsel entered his appearance on January 23, 2018.
           Appellant was permitted to file a second amended PCRA
           submitted April 2, 2018. [On June 19, 2018, the court
           issued notice of its intent to dismiss the petition without a
           hearing per Pa.R.Crim.P. 907. Appellant did not respond].
           The PCRA petition was dismissed on July 11, 2018…. On
           August 7, 2018, Appellant timely filed a Notice of Appeal to
           the Superior Court.

(PCRA Court Opinion, filed October 22, 2018, at 1-8) (internal citations

omitted). On August 10, 2018, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

which Appellant timely filed on August 20, 2018.

        Appellant raises three issues for our review:2

           DID THE [PCRA] COURT ERR IN ITS DETERMINATION,
           WITHOUT A HEARING, THAT TRIAL COUNSEL PROVIDED TO
           APPELLANT EFFECTIVE REPRESENTATION AT TRIAL
           DESPITE THE FACT THAT TRIAL COUNSEL OFFERED NO
           OPPOSITION TO THE COMMONWEALTH SEEKING TO ADMIT
           PRIOR BAD ACTS EVIDENCE AGAINST APPELLANT AT THE
           TIME OF TRIAL, DID NOT REQUEST TO LIMIT THE AMOUNT
           OF SUCH EVIDENCE PRESENTED AGAINST APPELLANT, AND
           DID NOT REQUEST A CURATIVE INSTRUCTION TO THE JURY
           REGARDING THE PRESENTATION OF SUCH EVIDENCE?

           DID THE [PCRA] COURT [ERR] IN ITS DETERMINATION
           WITHOUT A HEARING, THAT TRIAL COUNSEL PROVIDED TO
           APPELLANT EFFECTIVE REPRESENTATION, WHEN SHE
           FAILED TO OFFER INTO EVIDENCE THE FACT THAT THE
           VICTIM, APPELLANT’S WIFE, WAS INVOLVED WITH
           APPELLANT IN ACTIVE CUSTODY LITIGATION AND THAT
           THE VICTIM HAD SOUGHT AND BEEN DENIED A PRIOR PFA
           FROM THE MONTGOMERY COUNTY COURT, PRIOR TO THE
           DATE OF THE ALLEGED CRIME?
____________________________________________


2   We have reordered Appellant’s issues.

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         DID THE [PCRA] COURT ERR IN DENYING APPELLANT AN
         EVIDENTIARY HEARING PURSUANT TO THE POST
         CONVICTION RELIEF ACT INASMUCH AS APPELLANT HAD
         ISSUES MERITORIOUS OF REVIEW THAT COULD ONLY BE
         PROPERLY CONSIDERED FOLLOWING AN EVIDENTIARY
         HEARING?

(Appellant’s Brief at vi).

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

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). 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 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of

right; the PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997).          “To obtain reversal of a

PCRA court’s decision to dismiss a petition without a hearing, an appellant

must show that he raised a genuine issue of fact which, if resolved in his favor,

would have entitled him to relief, or that the court otherwise abused its

discretion in denying a hearing.” Commonwealth v. Cousar, 638 Pa. 171,

188, 154 A.3d 287, 297 (2017).


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      For purposes of disposition, we combine Appellant’s issues. Appellant

argues trial counsel failed to object to the Commonwealth’s introduction of

“prior bad acts” evidence concerning the February 14, 2014 incident between

Appellant and Victim.     Appellant asserts trial counsel’s failure to object

eliminated the court’s obligation to conduct a balancing test to decide whether

the probative value of the evidence outweighed its prejudicial effect.

Appellant contends that whether the evidence was admissible for an

appropriate reason (i.e., to demonstrate motive or intent) creates a question

of material fact that must be examined at a PCRA hearing. Appellant claims

trial counsel also failed to cross-examine Victim about the parties’ ongoing

custody litigation or Victim’s prior failed attempt to obtain a PFA order against

Appellant at the outset of their divorce litigation. Had trial counsel explored

these issues, Appellant avers the jury would have seen that Victim had a

motive to fabricate her testimony.       Appellant insists his claims call into

question trial counsel’s strategy, which required the PCRA court to hold an

evidentiary hearing. Appellant concludes he raised colorable claims of trial

counsel’s ineffectiveness, and this Court must remand for an evidentiary

hearing. We disagree.

      The   law   presumes    counsel   has   rendered    effective   assistance.

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004),

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of

ineffective assistance of counsel, a petitioner must show, by a preponderance


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of the evidence, 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.

Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal

denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:

(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable

strategic basis for her 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. Id. at 880. “The petitioner bears the

burden of proving all three prongs of the test.”                   Id.    Importantly, “PCRA

hearings are not discovery expeditions, but are conducted when necessary to

offer the petitioner an opportunity to prove his explicit assertion of

ineffectiveness raising a colorable claim about which there remains an issue

of material fact.” Cousar, supra at 192, 154 A.3d at 299. Thus, “if the record

reflects that the underlying issue is of no arguable merit or no prejudice

resulted,    no   evidentiary    hearing       is     required.”         Commonwealth       v.

Bauhammers, 625 Pa. 354, 385, 92 A.3d 708, 726-27 (2014).

      Pennsylvania Rule of Evidence 404(b) provides as follows:

            Rule 404. Character Evidence; Crimes or Other Acts

                                        *      *      *

            (b)   Crimes, Wrongs or Other Acts.

            (1) Prohibited Uses. Evidence of a crime, wrong, or other
            act is not admissible to prove a person’s character in order

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         to show that on a particular occasion the person acted in
         accordance with the character.

         (2) Permitted Uses. This evidence may be admissible for
         another purpose, such as proving motive, opportunity,
         intent, preparation, plan, knowledge, identity, absence of
         mistake, or lack of accident. In a criminal case this evidence
         is admissible only if the probative value of the evidence
         outweighs its potential for unfair prejudice.

                                  *     *      *

Pa.R.E. 404(b)(1)-(2). In other words, evidence of other crimes or bad acts

is admissible if offered for a non-propensity purpose, such as proof of an

actor’s knowledge, plan, motive, identity, or absence of mistake or accident.

Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005), cert. denied,

549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006). Additionally, “our courts

will allow evidence of prior bad acts where the distinct crime or bad act was

part of a chain or sequence of events which formed the history of the case

and was part of its natural development.” Commonwealth v. Drumheller,

570 Pa. 117, 137, 808 A.2d 893, 905 (2002), cert. denied, 539 U.S. 919, 123

S.Ct. 2284, 156 L.Ed.2d 137 (2003) (holding admission of victim’s prior PFA

petitions against appellant was proper to demonstrate continual and

escalating nature of appellant’s abuse of victim).

      When offered for a legitimate purpose, evidence of prior crimes or bad

acts is admissible if its probative value outweighs its potential for unfair

prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014),

cert. denied, ___ U.S. ___, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014). “‘[U]nfair


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prejudice’ means a tendency to suggest decision on an improper basis or to

divert the jury’s attention away from its duty of weighing the evidence

impartially.” Id. at 159, 84 A.3d at 666 (quoting Pa.R.E. 403, Comment).

        Evidence will not be prohibited merely because it is harmful
        to the defendant. This Court has stated that it is not
        required to sanitize the trial to eliminate all unpleasant facts
        from the jury’s consideration where those facts are relevant
        to the issues at hand and form part of the history and
        natural development of the events and offenses for which
        the defendant is charged. Moreover, we have upheld the
        admission of other crimes evidence, when relevant, even
        where the details of the other crime were extremely
        grotesque and highly prejudicial.

Commonwealth v. Tyson, 119 A.3d 353, 360 (Pa.Super. 2015) (en banc)

(internal citation omitted). “Additionally, when examining the potential for

undue prejudice, a cautionary jury instruction may ameliorate the prejudicial

effect of the proffered evidence. … Jurors are presumed to follow the trial

court’s instructions.” Hairston, supra at 160, 84 A.3d at 666.

     Instantly, the PCRA court addressed Appellant’s claims as follows:

        Here, Appellant asserts he should be granted relief due to
        ineffective assistance of counsel. This [c]ourt has declined
        to hold an evidentiary hearing because the [c]ourt could
        determine from Appellant’s Second Amended Petition for
        Relief that Appellant has failed to overcome the presumption
        that counsel is effective and could not meet the three prong
        test.

                                  *     *      *

        … Appellant asserts that his trial counsel was ineffective
        because she allowed prior bad acts to be admitted without
        requesting to limit the amount of evidence presented and
        failed to request a jury limiting instruction. From the record,
        this [c]ourt determined that this claim is without merit and

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       Appellant did not suffer actual prejudice as a result of
       counsel’s performance since the result would not have been
       different.

       During the pre-trial portion of this case, the Commonwealth
       submitted Motions in Limine for the admission of Appellant’s
       prior bad acts. The Commonwealth argued that while prior
       bad acts are generally not admissible they may be admitted
       to prove motive, intent, plan, preparation, and knowledge.
       It was [the Commonwealth’s] argument that the February
       14, 2014 allegations were admissible at trial to demonstrate
       intent:

          [I]t shows that [V]ictim went to extensive lengths
          within the law to try to keep [Appellant] from having
          any further contact with her and that the sexual
          encounter on March 18, 2014, could not in any way
          be considered consensual sex. This testimony shows
          evidence of [Appellant’s] intent and knowledge, i.e.,
          that [Appellant] did not intend to engage in
          consensual sex with [V]ictim on March 18, 2014. The
          testimony about the prior incident and the PFA also
          show [Appellant’s] motive and intent to break into
          [V]ictim’s home to surreptitiously gain access to her
          as he was not permitted to have any legal contact with
          her. Commonwealth’s Motion in Limine to Admit Prior
          Bad Acts 7/18/2014.

       Appellant is correct in stating that trial counsel did not object
       to [the Commonwealth’s] motion in limine. However, trial
       counsel’s lack of objection does not rise to ineffective
       counsel because these prior bad acts were admissible to
       show intent.

       Appellant does not plead or offer any legal authority that
       would have precluded the prior bad acts that were
       introduced at trial. In addition, he fails to plead or identify
       in what way the prior bad acts should have been limited.
       Essentially, Appellant has set forth a bald claim and fails to
       provide any argument to support the merit to his claim.

       Furthermore, the prior bad acts introduced from February
       14, 2014 were admissible under Pennsylvania law [to show


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       the chain or sequence of events that formed the history of
       the case].

       … While trial counsel may not have asked for the limiting
       instruction at the pretrial motion, she did request it during
       the course of trial. This [c]ourt instructed the jury to
       consider the February 14, 2014 [incident] in a limited
       manner:

          You’ve also heard evidence presented by the
          Commonwealth alleging that [Appellant] assaulted
          [Victim] on February 14, 2014, leading to the filing of
          criminal charges and the entry of protection from
          abuse order in Montgomery County. The evidence of
          the February 14, 2014, incident is before you for a
          very limited purpose; that is, for the purpose of
          rebutting the defense contention that the sexual acts
          occurring on March 18th were consensual.

          This evidence must not be considered by you in any
          way other than for this purpose. You must not
          consider this evidence as showing that [Appellant] is
          a person of bad character, or of criminal tendencies
          from which you might be inclined to infer guilt. Its
          sole purpose for your consideration is the
          Commonwealth’s contention that it rebuts the
          defense’s claim of consent. (N.T. Jury Trial, 11/13/14,
          pp 156-57).

       These instructions further support the fact that Appellant’s
       ineffective counsel claim is meritless. Even if Appellant’s
       claim [had arguable merit], he would fail to satisfy the third
       prong of the test that the result would have been different.

       It is clear that trial counsel did ask for a limiting instruction
       regarding the prior bad acts from February 14, 2014, and
       that the jury was instructed by this [c]ourt to use those acts
       for a very limited purpose. With these limiting instructions,
       Appellant was still found guilty. Therefore, Appellant cannot
       prove that counsel’s action or inaction resulted in a
       prejudicial outcome. Appellant’s failure to satisfy prongs
       one and three of the ineffective assistance test results in his
       claim being dismissed.


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                                *     *      *

       Appellant [also] asserts [that] trial counsel was ineffective
       when she failed to admit evidence of the custody litigation
       between [V]ictim and Appellant. It is Appellant’s belief that
       the custody litigation serves as an explanation as to why
       [V]ictim would fabricate criminal allegations against
       Appellant. …

       While trial counsel may not have introduced the history of
       the divorce and custody proceedings, the jury heard this
       evidence during direct examination of [V]ictim. In addition,
       on direct examination trial counsel fully explored Appellant’s
       versions of the February 14 and March 18, 2014 incidents.

       During Appellant’s testimony, trial counsel elicited from
       Appellant details regarding their marriage and the roller
       coaster of intimacy and jealousy. Furthermore, it was
       elicited from Appellant that he believed [V]ictim fabricated
       the February 14 and March 18, 2014 incidents to keep him
       from his daughter. However, Appellant contradicted his own
       theory by stating [V]ictim did not deny his access to his
       daughter, and he was permitted to visit their child. The
       evidence elicited at trial would discredit or negate any
       impeachment that could have been derived from the
       custody litigation. As such, Appellant’s claim for ineffective
       counsel is meritless.

       Appellant also argues that counsel should have offered into
       evidence that [V]ictim had been denied a prior PFA request
       from Montgomery County Court prior to the March 18, 2014
       [incident]. The only evidence of the prior PFA request is the
       docket entry Appellant attached. The docket shows that
       [Victim] filed for a PFA on December 19, 2013. On that
       same day, the temporary order was denied and the PFA
       praecipe to withdraw was submitted. Appellant pleads no
       other facts besides “the victim had filed for Protection from
       Abuse on December 19, 2013…but that request for
       protection was denied.” It is Appellant’s contention that trial
       counsel should have introduced evidence of the withdrawn
       PFA as an explanation for why [V]ictim would fabricate
       criminal allegations.

       This [c]ourt sees no merit in Appellant’s argument.         In

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        addition, even if this argument had [arguable] merit,
        Appellant could not satisfy the third prong prejudice
        requirement of the ineffective assistance of counsel test.
        There is not a reasonable probability that the result would
        have been different if trial counsel had elicited that [V]ictim
        had withdrawn her December PFA petition. The jury was
        able to hear from both [V]ictim and Appellant. They were
        made aware of both sides of the story regarding the
        February and March allegations. In addition, Appellant
        conveyed quite strongly that [V]ictim was jealous of his
        current girlfriend he was living with and did not want
        “females” around their daughter.

        If the jury was to believe that [V]ictim had fabricated the
        criminal allegations, there was sufficient testimony for the
        jury to do so. They jury chose to find [V]ictim more credible
        [than] Appellant and there is [no] reasonable probability
        that [the jury’s] decision would have been impacted by
        additional testimony regarding the withdrawn PFA petition.

        Appellant has failed to meet his burden to overcome the
        presumption that trial counsel was ineffective. For this
        specific claim, he has failed to demonstrate there is
        [arguable] merit. In addition, even if this [c]ourt believes
        the claim had merit, Appellant has failed to satisfy prong
        three of the test. Based on the PCRA petition and the
        exhibits, there is not a reasonable probability that trial
        counsel’s decision to omit the PFA impacted the result of the
        trial. As such, Appellant has not been prejudiced.

(PCRA Court Opinion at 11-16) (some internal citations omitted). The record

supports the court’s analysis. See Ford, supra. Appellant’s ineffectiveness

claims lacked arguable merit and prejudice, so the PCRA court properly

declined to hold an evidentiary hearing. See Cousar, supra; Bauhammers,

supra. Accordingly, we affirm.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/19




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