J-S36016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DUSTIN ANDREW SCOTT                        :
                                               :
                       Appellant               :   No. 421 MDA 2019

            Appeal from the PCRA Order Entered February 14, 2019
    In the Court of Common Pleas of Huntingdon County Criminal Division at
                       No(s): CP-31-CR-0000411-2015


BEFORE:      PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                          FILED SEPTEMBER 24, 2019

        Appellant, Dustin Andrew Scott, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541–9546.1 We affirm.

        This appeal stems from charges filed against Appellant due to an

altercation with his then-pregnant girlfriend. Following a jury trial, Appellant

was convicted of aggravated assault and simple assault.2 On March 3, 2016,

he was sentenced to an aggregate term of seven to fourteen years of

imprisonment.        Sentencing Order, 3/4/16, at 1.     Appellant filed a direct


____________________________________________


1   We note that the Commonwealth has failed to file a brief in this matter.

218 Pa.C.S. §§ 2702(a)(1) and 2701(a)(1), respectively. The simple-assault
conviction merged with the aggravated-assault conviction. Sentencing Order,
3/4/16, at 1.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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appeal, and this Court affirmed the judgment of sentence on April 11, 2017.

Appellant’s request for allowance of appeal was denied by the Supreme Court

on September 6, 2017. Commonwealth v. Scott, 169 A.3d 1154, 464 MDA

2016 (Pa. Super filed April 11, 2017), appeal denied, 170 A.3d 1029, 251 MAL

2017 (Pa. filed September 6, 2017).

        On March 5, 2018, Appellant filed the instant PCRA petition. Counsel

was appointed and an amended petition was filed on July 31, 2018. A hearing

was held on Appellant’s petition on October 30, 2018. On February 14, 2019,

Appellant’s PCRA petition was denied. Appellant filed his notice of appeal on

February 27, 2019. Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        On appeal, Appellant presents the following issue for our review:

“Whether the PCRA Court erred in finding that Appellant’s trial counsel was

not ineffective in representing Appellant at trial where trial counsel admitted

to providing almost no preparation to Appellant prior to his testimony at trial?”

Appellant’s Brief at 2. The thrust of Appellant’s claim is that trial counsel was

ineffective for failing to prepare Appellant to testify at trial. Id. at 3-5. The

primary basis for this claim is the heated verbal argument Appellant had with

the District Attorney during cross-examination. Id. at 9. Appellant argues

that counsel’s failure to prepare him to testify resulted in this argument, and

the argument had a negative impact on the jury’s conviction of Appellant. Id.

at 7-10. Appellant maintains that because an attorney has an obligation to


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prepare for trial and prepare witnesses for trial, it is beyond question that his

claim that Attorney Wencker failed to prepare Appellant for trial has arguable

merit.   Id. at 8.   Appellant also argues that counsel’s asserted reason for

failing to prepare Appellant for trial lacked a strategic basis.     Id. at 8-9.

Furthermore, Appellant contends that counsel’s failure to prepare Appellant

prejudiced Appellant. Id. at 9-10.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016). The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

      Our Supreme Court has explained the following in addressing an

ineffective assistance of counsel claim:

             To prevail in a claim of ineffective assistance of counsel, a
      petitioner must overcome the presumption that counsel is
      effective by establishing all of the following three elements, as set
      forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973,
      975–76 (1987): (1) the underlying legal claim has arguable
      merit; (2) counsel had no reasonable basis for his or her action or
      inaction; and (3) the petitioner suffered prejudice because of
      counsel’s ineffectiveness.

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

     With regard to the second, reasonable-basis-prong, “we do not question

whether there were other more logical courses of action which counsel could

have pursued; rather, we must examine whether counsel’s decisions had any

reasonable basis.” Commonwealth v. Washington, 927 A.2d 586, 594 (Pa.

2007). We will conclude that counsel’s chosen strategy lacked a reasonable

basis only if Appellant proves that “an alternative not chosen offered a

potential for success substantially greater than the course actually pursued.”

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006). “In order to

meet the prejudice prong of the ineffectiveness standard, a 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.’” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012).

     A claim of ineffective assistance of counsel will fail if the petitioner does

not meet any of the three prongs. Commonwealth v. Williams, 863 A.2d

505, 513 (Pa. 2004).     “The burden of proving ineffectiveness rests with

Appellant.” Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).

     In addressing Appellant’s claim, the PCRA court explained:

            In his Amended PCRA Petition and in his testimony at
     hearing [Appellant] stated that the basis for relief was the
     competency of his trial attorney, and more specifically his failure
     to prepare him to testify. The factual basis for the claim that the
     trial counsel was ineffective was the brouhaha that developed at
     trial between [Appellant] and the District Attorney during cross
     examination. The confrontation between [Appellant] and the DA

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       became heated enough that the trial judge excused the jury in
       order to give [Appellant] the opportunity to cool down and collect
       himself.

              In his direct testimony at the PCRA hearing, [Appellant]
       testified he had only met twice at the jail with his court appointed
       attorney Christopher B. Wencker, Esquire. He was never advised
       he said that it would be necessary for him to testify. He agreed
       that although he was honest he did not present well to the jury.
       He related that the DA was trying to portray him as [a] woman
       beater, and he was trying to refute that characterization which he
       said, the DA knew was not true. “That’s when things started going
       south. Once he knew he had me on the hook he just kept firing
       at me.” He was upset, he said, at being called a woman beater
       and agreed that the examination became very heated with him
       and the DA yelling back and forth.

             Attorney Wencker testified he has eighteen years of
       experience defending clients accused of committing crimes. His
       time records with respect to his representation of [Appellant] were
       received into evidence. They indicate Mr. Wencker spent twenty-
       seven (27) hours on this case. The records show meetings with
       [Appellant] at the jail as well as at the courthouse. The records
       also reflect telephone contact with [Appellant] as well as meetings
       with [Appellant’s] mother.

              Mr. Wencker testified he pursued two defenses. First, he
       said, he tried to establish facts that would allow successful
       argument that Commonwealth v Alexander, 477 Pa. 190, [383] A.
       2d[] 887 (1977)[3] was applicable.        Alternatively, and more
       realistically, Attorney Wencker said the defense proceeded on the
       theory that [Appellant] did not have the specific intent to inflict
       serious bodily injury. This defense, he pointed out, almost
       [always] requires a defendant to testify concerning his lack of
       mens rea.

             Mr. Wencker testified that he advised [Appellant] of his need
       to testify. He also related that he gave [Appellant] some general
____________________________________________


3 In Alexander, our Supreme Court held that evidence that the victim
sustained a broken nose as a result of a single blow delivered by the defendant
was insufficient to suggest a conviction of aggravated assault. Alexander,
383 A.2d at 888-890.

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      instructions about testifying. Thus he said “I told him... to answer
      truthfully, to speak out loud, to wait a moment after he hears a
      question[], to think about it and think about the answer, to gather
      his thoughts and try and calm down a bit before he answers.”

           Mr. Wencker agreed that [Appellant’s] testimony was
      calamitous.

                                       ***

      The testimony of [Appellant] that he was not prepared to testify
      was refuted by the testimony of Attorney Wencker who we find
      was far more credible.

PCRA Court Opinion, 2/14/19, at 4-6 (internal citations omitted).

      The PCRA court accurately summarized the testimony at the PCRA

hearing. Accordingly, we are constrained to conclude that there is no arguable

merit to Appellant’s claim of counsel’s ineffectiveness.    As the PCRA court

noted, the evidence reflects that counsel met with Appellant on multiple

occasions prior to trial. Despite Appellant’s assertions that counsel did not

prepare him for the possibility that he may have to testify at trial, Attorney

Wencker stated that he told Appellant on many occasions that he may have

to testify depending on how the trial progressed. N.T., 10/30/18, at 6-8. We

note that the PCRA court found the testimony of Attorney Wencker to be more

credible than Appellant’s testimony.

      Furthermore, counsel explained that he advised Appellant regarding

how to testify:

      I told him that he may have to testify and if he does so, to answer
      truthfully, to speak out loud, to wait a moment after he hears a
      question, to think about it and think about the answer, to gather
      his thoughts and try and calm down a little bit before he answers.

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      I always tell people it’s natural to be a little nervous when you
      have to testify in court because it’s his life that is on the line, I
      guess, at that point. But that also gives me the opportunity to
      object in case there is something objectionable about the
      question.

N.T., 10/30/18, at 8. Counsel stated that he generally did not put individuals

testifying through a mock cross-examination because he did not “like to sand

paper witnesses too much because in my experience it never comes across

very well. They end up sounding rehearsed, and I don’t feel like I can mimic

the questions that are going to be asked by the D.A.” Id. at 8. In defining

“sand paper a witness,” counsel explained:

            That’s the phrase that at least I have used in the past that
      refers to taking the rough edges off of somebody’s testimony or
      presentation as though you’re sand papering a rough piece of
      wood so that it is smoother and more polished and in better shape.
      I don’t like to do that. In my experience it is counter productive.

Id. at 9.

      Furthermore, at the PCRA hearing, PCRA counsel asked Attorney

Wencker:    “Did you discuss at any point with [Appellant] him needing to

maintain his demeanor when he testified?” N.T., 10/30/18, at 9. Attorney

Wencker responded: “I don’t know that I did. Having met with [Appellant]

the times that I had, he always struck me as being somebody who was fairly

level headed. I didn’t think it would be necessary.” Id. Thus, the evidence

supports the conclusion that Attorney Wencker advised Appellant as to the

possibility that he may have to testify at trial, and that he prepared Appellant,




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to the extent necessary, for that possibility. Accordingly, there is no arguable

merit to Appellant’s claim.

      Although failure to establish any one prong for a claim of ineffectiveness

defeats such a claim, Williams, 863 A.2d at 513, we note that Appellant has

failed to establish the remaining two prongs as well. With regard to the second

prong of the ineffectiveness claim, we observe that Attorney Wencker’s

strategy of having Appellant testify had a reasonable basis. Washington,

927 A.2d at 594. Counsel was attempting to establish that Appellant lacked

the mens rea to inflict serious bodily injury, thereby defeating the charge of

aggravated assault. See 18 Pa.C.S. § 2702(a)(1) (Under the Crimes Code, a

person may be convicted of aggravated assault if he or she “attempts to cause

serious bodily injury to another, or causes such injury intentionally, knowingly,

or recklessly under circumstances manifesting extreme indifference to the

value of human life.”). Thus, trial counsel had Appellant testify that he did

not intend to cause serious bodily injury to the victim. As outlined, counsel

testified that he had prepared Appellant for the possibility of having to testify.

Counsel therefore had a reasonable basis for his strategy despite Appellant’s

claim that counsel had not prepared him to testify.        Appellant accordingly

failed to establish the second prong of his ineffectiveness claim.

      Furthermore, Appellant has failed to establish that he was prejudiced by

any alleged failure of counsel to prepare him to testify. Even if Appellant had

not engaged in the argument with the District Attorney, it is unlikely that the


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outcome of the trial would have been different. Reed, 42 A.3d at 319. The

testimony of the other witnesses, including the victim and the doctors who

testified regarding the victim’s shattered jaw which resulted from Appellant’s

actions, was sufficient to establish the elements of a conviction for aggravated

assault. N.T., 1/19/16, at 18-39, 73-82, 94-108. Thus, Appellant has failed

to establish the third prong of his ineffective assistance of counsel claim.

Rega, 933 A.2d at 1018. Accordingly, Appellant’s ineffectiveness claim fails.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/24/2019




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