J-S04028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEVIN THOMAS COOPER                        :
                                               :
                       Appellant               :   No. 1151 MDA 2018

             Appeal from the PCRA Order Entered January 24, 2018
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0001463-2015


BEFORE:      SHOGAN, J., OTT, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 26, 2019

        Devin Thomas Cooper appeals, nunc pro tunc, from the order entered

on January 24, 2018, denying his first petition filed pursuant to the

Pennsylvania Post Conviction Relief Act (PCRA).1 Cooper seeks relief from the

judgment of sentence of 3½ to 7 years’ imprisonment, with 2 years’

consecutive probation, imposed after a jury convicted Cooper of one count

each of sexual assault, criminal trespass, false imprisonment, and simple

assault.2 Cooper contends the PCRA court erred in denying relief where trial

counsel was ineffective because: (1) he failed to conduct an adequate pre-

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   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541–9546.

2  18 Pa.C.S.A.       §§   3124.1, 3503(a)(1)(i),     2903(a),   and 2701(a)(1),
respectively.
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trial investigation; (2) he failed to call eight fact witnesses; (3) he failed to

call character witnesses; and (4) he failed to obtain and introduce certain

evidence at trial. See Cooper’s Brief at 4. Based on the following, we affirm.

      We take the underlying facts and procedural history in this matter from

this Court’s decision on direct appeal and our review of the certified record:

            The events relevant to this case occurred on the
            morning of May 27, 2015, when [the victim] was
            attacked in her apartment.         [The victim] and
            [Appellant] previously were involved in a romantic
            relationship over the course of two years and have a
            daughter together. At approximately [eight] in the
            morning, while [the victim] was preparing for work,
            the power to her apartment shut off. After the power
            went out, [the victim] looked out her window and
            noticed a truck that she believed belonged to her
            landlord in the apartment complex parking lot. Just
            outside of the front door to [the victim’s] apartment
            is the electrical utility room for the apartment
            complex. Neither the external door leading into the
            complex nor the door to the electrical utility room
            were customarily kept locked. While she was looking
            out of the window to her apartment, [the victim]
            heard a knock on her door. Believing her landlord
            might have been working on electrical repairs, [the
            victim] walked to her front door and twisted the
            doorknob to unlock it. Upon opening the door enough
            to look out, [the victim] saw that [Appellant] was in
            the hallway. Though she tried to close the door,
            [Appellant] forced his way into her apartment. Once
            inside the apartment, [Appellant] grabbed [the
            victim] by the arms. [The victim] broke away and
            retreated to her bedroom to obtain her phone in order
            to call for help. [Appellant] pursued her and a
            struggle broke out over the phone. During this
            struggle, [Appellant] grabbed [the victim] and placed
            his hands over her mouth and throat, making it
            difficult for her to breath[e]. He eventually pushed
            her face-down onto the floor and sat on her back,
            alternatively reading texts on her phone and

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          suffocating her by placing his hands over her mouth
          and nose when he read a text that angered him.
          Eventually [Appellant] got up off of [the victim] and
          allowed her to get up. Around this time [the victim’s]
          phone was ringing as her manager and co-worker
          were calling her because she was late for her work
          shifted [sic] which started at 9:45 a.m.

          [Appellant] remained in the apartment after allowing
          [the victim] to get up off of the floor[,] claiming he
          wanted to see his daughter. At this time, [the victim]
          went into the living room to change her pants, as the
          pants she was wearing were covered in dog hair from
          being on the floor. [Appellant] followed her into the
          living room, pushed [the victim] onto the couch, and
          proceeded to pull down her underwear and pants
          while also undoing his own pants. [Appellant] then
          proceeded to have sexual intercourse with [the
          victim], despite her verbal protestations. When he
          was finished, [Appellant] went into the daughter’s
          room and changed her diaper while [the victim]
          finished getting dressed. At this point [Appellant]
          allowed [the victim] and their daughter to leave and
          walked outside with them to [the victim’s] car. [The
          victim] got into her car, called 911, and started driving
          to her aunt’s house. During the call she spoke with
          Officer [Richard] Grove who told her to go to the
          Carlisle Hospital. At the hospital [the victim] met
          Officer Grove and submitted herself to a rape kit
          examination, which included a vaginal swab and
          photographs of any bruising or markings on [her]
          body. [The victim] had markings and bruises on her
          arms, chest, and face.

          Later that evening [the victim] went to the police
          station and filed a written report on the incident. At
          the urging of Officer Grove, [the victim] called
          [Appellant] from the police station and allowed the call
          to be recorded.       [Appellant] was subsequently
          arrested and charged with the above captioned
          offenses.

          At trial, [the victim] testified that, over the course of
          their previous relationship, [Appellant] had physically

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            assaulted and threatened her. Specifically, she briefly
            testified that he tackled her to the ground when she
            was six months pregnant and, at a different time,
            attempted to put her hands in a ceiling fan. Partially
            as a result of these prior actions, [the victim] took the
            [Appellant’s] threats seriously.

     (Trial Court Opinion, 7/15/16, at 2-5) (footnote omitted).

     On August 21, 2015, the Commonwealth filed a criminal
     information charging Appellant with two counts of rape, and one
     count each of burglary, sexual assault, criminal trespass,
     terroristic threats, false imprisonment, and simple assault.
     Immediately prior to the start of trial, on October 26, 2015,
     Appellant moved to exclude all evidence of prior violent episodes
     during his relationship with the victim. After hearing argument,
     the trial court denied the motion.

     A jury trial took place on October 26, 27, and 28, 2015. The jury
     acquitted Appellant of rape, burglary, and terroristic threats, but
     found him guilty of sexual assault, criminal trespass, false
     imprisonment, and simple assault. On February 23, 2016, the
     trial court sentenced Appellant to an aggregate term of
     incarceration of not less than three and one-half nor more than
     seven years, to be followed by a two-year term of probation.

Commonwealth v. Cooper, 2017 WL 1372802, at **1-2 (Pa. Super. Apr.

13, 2017) (unpublished memorandum) (footnotes and most record citations

omitted).

     On April 13, 2017, this Court affirmed the judgment of sentence. Id.

On October 12, 2017, the Pennsylvania Supreme Court denied leave to appeal.

See Commonwealth v. Cooper, 172 A.3d 1112 (Pa. 2017).

     Cooper filed the instant, timely pro se PCRA petition on October 23,

2017. The PCRA court appointed counsel. An evidentiary hearing took place

on January 22, 2018.


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      At the hearing, Cooper provided a list of names to the PCRA court of

witnesses he stated were ready and available at trial to offer testimony on his

behalf, he verbally amended the list to add additional names at the hearing.

N.T. PCRA Hearing, 1/22/2018, at 6-13.        None of the proposed witnesses

provided any affidavits substantiating his claims and none testified at the

PCRA hearing. Cooper also testified regarding various text messages, photos,

voicemails, phone records, Facebook messages, web pages, and other

documents, that he believed that counsel should have obtained and placed

into evidence at trial. Id. at 13-19.

      Conversely, counsel testified that he was unaware of the existence of

most of the witnesses on the list. Id. at 38-39. Counsel stated that he spoke

with the sole witness Cooper asked him to interview, Ashlee Johnston, several

times but was unable to substantiate Cooper’s contention that she had

exculpatory evidence in the form of a text message from the victim claiming

that she was setting Cooper up. Id. at 38. Counsel also stated that Cooper

gave him several character letters but, when he explained that the individuals

who wrote them would have to testify in court, not just write letters, Cooper

refused to allow counsel to call them. Id. at 39. Counsel expressed that,

because Cooper was so adamant in not allowing him to call the character

witnesses, he wondered if the letters were fraudulent. Id. at 45. Counsel

also maintained that he believed his trial strategy of questioning the timeline

and the lack of severity of the victim’s injuries in contrast to her description


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of a violent rape was successful. He pointed out that the jury acquitted Cooper

of four charges, including the three most serious charges, two counts of rape

and one count of burglary, all felonies of the first degree, as well as terroristic

threats. Id. at 39-40.

       On January 25, 2018, the court denied Cooper’s petition. Cooper did

not file an appeal.

       On April 26, 2018, Cooper filed a second, timely, pro se PCRA petition

claiming that counsel had failed to file a requested appeal of the denial of his

first PCRA petition. Following a hearing, on June 25, 2018, the PCRA court

reinstated Cooper’s appeal rights. The instant, timely appeal followed. 3

       Our standard of review is well settled:

       This Court analyzes PCRA appeals in the light most favorable to
       the prevailing party at the PCRA level. Our review is limited to
       the findings of the PCRA court and the evidence of record and we
       do not disturb a PCRA court’s ruling if it is supported by evidence
       of record and is free of legal error. Similarly, [w]e grant great
       deference to the factual findings of the PCRA court and will not
       disturb those findings unless they have no support in the record.
       However, we afford no such deference to its legal conclusions.
       [W]here the petitioner raises questions of law, our standard of
       review is de novo and our scope of review is plenary. Finally, we
       may affirm a PCRA court’s decision on any grounds if the record
       supports it.




____________________________________________


3 Cooper timely filed a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The PCRA
court issued an opinion on August 16, 2018.

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Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (quotation

marks and citations omitted). Furthermore, where, as here, the defendant

alleges counsel rendered ineffective assistance, we note:

     In order to obtain relief under the PCRA premised upon a claim
     that counsel was ineffective, a petitioner must establish beyond a
     preponderance of the evidence that counsel’s ineffectiveness so
     undermined the truth-determining process that no reliable
     adjudication of guilt or innocence could have taken place. When
     considering such a claim, courts presume that counsel was
     effective, and place upon the appellant the burden of proving
     otherwise. Counsel cannot be found ineffective for failure to
     assert a baseless claim.

     To succeed on a claim that counsel was ineffective, Appellant must
     demonstrate that: (1) the claim is of arguable merit; (2) counsel
     had no reasonable strategic basis for his or her action or inaction;
     and (3) counsel’s ineffectiveness prejudiced him.

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (quotation

marks and citations omitted). “To demonstrate prejudice, a petitioner must

show that there is a reasonable probability that, but for counsel’s actions or

inactions, the result of the proceeding would have been different.”

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

     In his first claim, Cooper contends that trial counsel failed to conduct an

adequate pre-trial investigation. Cooper’s Brief, at 4. Specifically, Cooper

argues that counsel failed to interview many potential witnesses, failed to

meet with him, and failed to formulate an adequate trial strategy. Id. at 9-

11. We disagree.

     Our Supreme Court has stated that counsel has a general duty to

undertake reasonable investigations or make reasonable decisions that render

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particular investigations unnecessary. Commonwealth v. Basemore, 744

A.2d 717, 735 (Pa. 2000). Counsel’s unreasonable failure to prepare for trial

is “an abdication of the minimum performance required of defense counsel.”

Commonwealth        v.   Johnson,     966    A.2d    523,   535    (Pa.   2009);

Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003) (holding failure

to hold any meetings with defendant before trial was ineffective assistance of

counsel). This duty to investigate may include a duty to interview certain

potential witnesses; and a prejudicial failure to fulfill this duty may lead to a

finding of ineffective assistance of counsel. See Commonwealth v. Perry,

644 A.2d 705, 709 (Pa. 1994). Where matters of strategy and tactics are

concerned, we deem counsel’s assistance constitutionally effective if he chose

a particular course that had some reasonable basis to effect the client’s

interest. Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011).

      Initially, we note that part of this claim is interrelated with Cooper’s

second and third claims that trial counsel failed to investigate and call

witnesses, therefore we will discuss that part of the claim infra. To the extent

that Cooper claims that counsel did not meet with him sufficiently to develop

a coherent trial strategy, the record belies this claim.

      At the PCRA hearing, counsel testified that he did not become involved

with the case until after arraignment but had several meetings and

conversations with Cooper.       N.T. PCRA Hearing, 1/22/2018, at 37. As

discussed above, counsel testified that his trial strategy was to question both


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the victim’s timeline and her lack of serious injury. Id. at 40. He stated that

he believed the strategy was successful because the jury acquitted Cooper of

the three most serious charges and one of the lesser charges. See id. at 40-

41. Counsel clarified that he could not proceed with Cooper’s preferred theory

of the case, that the victim texted him the night before the incident and invited

him over to both visit his child and to have sex because the telephone and

FaceTime logs obtained by the police did not support this version of events.

Id. at 42.      He explained that, when he confronted Cooper with this

information, Cooper began to alter his account of the events. Id.

      Here, the PCRA court found that counsel’s testimony with respect to this

issue was credible and Cooper’s testimony was not credible.               Order,

1/25/2018.     The court stated, “Specifically, [the PCRA] court finds that

[Cooper] was not credible in his assertions that former counsel . . . failed to

meet [him] or consult with him regarding trial strategy.” Id. As this finding

has support in the record, we have no basis to disturb it. Commonwealth

v. Dennis, 17 A.3d 297, 305 (Pa. 2011) (great deference is afforded to PCRA

court’s credibility findings).

      Moreover, Cooper has not shown how counsel’s strategic decisions,

which resulted in his acquittal on the three most serious charges, prejudiced

him. Thus, Cooper has failed to set forth the ineffectiveness analysis required

by Strickland v. Washington, 466 U.S. 668, 687 (1984). Because Cooper

has not established the prejudice prong, we must deem counsel’s assistance


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constitutionally effective. See Commonwealth v. Rolan, 964 A.2d 398, 406

(Pa. Super. 2008) (holding where appellant fails to establish any one of three

prongs of ineffectiveness test, he does not meet his burden of proving

ineffective assistance of counsel, and counsel is deemed constitutionally

effective); see also Lesko, supra at 380. Cooper’s first claim fails.

       In his second claim, Cooper alleges that counsel was ineffective for

failing to investigate and call eight witnesses at trial. Cooper’s Brief, at 11-

12; N.T. PCRA Hearing, 1/22/2018, at 6. This claim fails.

       To prove that trial counsel provided ineffective assistance for
       failing to call a witness, a petitioner must demonstrate:

              (1) the witness existed; (2) the witness was available
              to testify for the defense; (3) counsel knew of, or
              should have known of, the existence of the witness;
              (4) the witness was willing to testify for the defense;
              and (5) the absence of the testimony of the witness
              was so prejudicial as to have denied the defendant a
              fair trial.

Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018) (citation omitted).

       Here, Cooper did not attach any certifications to his PCRA petition from

any of the proposed witnesses, as required by 42 Pa.C.S.A. § 9545(d)(1), and

none of them testified at the evidentiary hearing. This is fatal to his claim. 4

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4 Moreover, we note that the record reflects that one of the proposed
witnesses actually testified for the Commonwealth at trial. N.T. PCRA Hearing,
1/22/2018, at 10-11. Counsel testified at the PCRA hearing that Cooper never
told him about five of the proposed witnesses. Id. at 38. He also stated that
he investigated and interviewed one of the witnesses, Ashlee Johnston, and
she did not corroborate Cooper’s claim that she had exchanged exculpatory



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Commonwealth v. Dennis, 950 A.2d 945, 964 (Pa. 2009) (holding that

defendant cannot prove claim that counsel was ineffective for failing to call

witnesses at trial without having those witnesses testify at PCRA hearing).

Cooper’s second claim fails.

       In his third claim, Cooper contends that counsel was ineffective for

failing to call character witnesses. Cooper’s Brief, at 12-13. An attorney’s

failure to present character witnesses may constitute ineffective assistance of

counsel. Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa. Super. 2001),

appeal denied, 847 A.2d 1279 (Pa. 2004). Our Supreme Court has stated:

       [i]n a case such as this, where there are only two direct witnesses
       involved, credibility of the witnesses is of paramount importance,
       and character evidence is critical to the jury’s determination of
       credibility. Evidence of good character is substantive, not mere
       makeweight evidence, and may, in and of itself, create a
       reasonable doubt of guilt and, thus, require a verdict of not guilty.

Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992) (citation omitted).

However, an attorney who chooses not to present evidence of his client’s good



____________________________________________


text messages with the victim. Id. at 38. Counsel averred that Cooper
specifically told him not to call proposed witness Bettina Lyons-Lilly because
she was supportive of the victim. Id. at 38-39. Further, even assuming,
arguendo, that counsel was aware of these witnesses, and that they were
willing to testify, it is not readily apparent from Cooper’s often contradictory
and disjointed testimony at the PCRA hearing what their testimony would have
been, that the testimony would have been admissible, and that it would have
been helpful to the defense. Rather, it appears that the testimony of at least
two of the proposed witnesses would have helped the Commonwealth, as it
would have demonstrated that the victim made outcry statements that Cooper
had raped her, on the same day as the incident, to both her family and his.
Id. at 9, 11.

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character is not ineffective so long as the attorney had a “reasonable strategic

basis” not to proffer such evidence. Commonwealth v. Von Horn, 797 A.2d

983, 988 (Pa. Super. 2002).

      Here, Cooper did not testify at the PCRA hearing that he wanted counsel

to call character witnesses. No proposed character witnesses either submitted

affidavits or testified at the PCRA hearing, which is fatal to his claim. See

Dennis, supra at 964. Further, as discussed above, counsel did testify that

he wanted to call character witnesses and Cooper refused to allow him. N.T.

PCRA Hearing, 1/22/2018, at 39, 45. The trial court credited this testimony.

Order, 1/25/2018, at 1; Opinion, 8/16/2018, at 3. We have no basis to disturb

this finding, which the record supports.        See Dennis, supra at 305.

Moreover, Cooper’s unsupported argument on appeal that counsel had a duty

to investigate and call to testify character witnesses even though Cooper had

specifically directed counsel not to call them is less than persuasive. Cooper’s

third claim fails.

      In his final claim, Cooper maintains that trial counsel was ineffective for

failing to obtain and introduce at trial a plethora of voicemails, photographs,

text messages, phone records, and social media exchanges. Cooper’s Brief,

at 14-15. We disagree.

      At the PCRA hearing, counsel testified that Cooper never requested that

he obtain any text messages, photos, or voicemails on his phone. N.T. PCRA

Hearing, 1/22/2018, at 46-47.      Counsel also stated that he did not recall


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Cooper requesting that he obtain phone records or social media exchanges.

Id. at 47-48. Counsel did review those phone records and text messages

obtained by the police, which did not contain exculpatory information as

Cooper claimed. Id. at 41. The PCRA court credited this testimony and we

have no basis to disturb the court’s findings. See Dennis, supra at 305.

      Moreover, Cooper again fails to explain how these various documents

were either relevant or otherwise admissible, and how their absence

prejudiced him.   Thus, he has failed to set forth the analysis required by

Strickland, and we must deem counsel’s actions to be constitutionally

effective. Rolan, supra. Cooper’s final claim fails.

      In light of the foregoing, our review of this matter demonstrates that

the record supports the PCRA court’s denial of relief and is free from legal

error and abuse of discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2019




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