J-S18021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONALD JOHN MCCAUSLIN, JR.

                            Appellant                 No. 705 MDA 2015


                   Appeal from the PCRA Order March 30, 2015
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0002304-2011


BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED APRIL 26, 2016

        Donald John McCauslin, Jr., appeals from the order of the Court of

Common Pleas of Cumberland County that denied his petition filed pursuant

to the Post-Conviction Relief Act (PCRA).1     Counsel for McCauslin has filed

with this Court a Turner/Finley brief and an application to withdraw as

counsel.2    After our review, we affirm the PCRA court’s order based, in

significant part, on the opinion of the Honorable Kevin A. Hess, and grant

counsel’s petition to withdraw.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Commonwealth v. Turner, 544 A.2d 917 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
J-S18021-16



      On May 2, 2012, a jury convicted McCauslin of aggravated indecent

assault, indecent assault, and corruption of minors. On November 6, 2012,

the court sentenced McCauslin to a term of twenty-two to forty-eight

months’ incarceration and ordered him to register as a sex offender.

      McCauslin filed a timely appeal of his judgment of sentence, which this

Court affirmed on November 19, 2013. Commonwealth v. McCauslin, 91

A.3d 1289 (Pa. Super. 2013) (unpublished memorandum). McCauslin filed a

pro se PCRA petition on September 24, 2014, raising several issues including

ineffective assistance of trial counsel.    On October 2, 2014, the court

ordered the Public Defender’s Office to represent McCauslin and directed it to

file an amended PCRA petition within thirty days. On December 16, 2014,

Deputy Public Defender Michael Halkias filed a motion for a continuance of

the PCRA hearing scheduled for January 5, 2015, and sought an extension to

file an amended PCRA petition.     By order dated December 22, 2015, the

court rescheduled the hearing for February 5, 2015, and directed Attorney

Halkias to file an amended petition by January 16, 2015.

      Attorney Halkias did not file an amended petition.     However, at the

commencement of the February 5, 2015 hearing, counsel reviewed with

McCauslin all of the issues that he raised in his pro se petition. Counsel also

gave McCauslin the opportunity to raise additional issues, which included

whether the trial court erred in failing to merge aggravated indecent assault,

indecent assault, and corruption of minors for purposes of sentencing.




                                     -2-
J-S18021-16



     The Commonwealth then presented the testimony of McCauslin’s trial

counsel, Joseph Caraciolo, Esquire.    The court filed an opinion and order

denying the PCRA petition on March 30, 2015.

     McCauslin filed a timely appeal raising the following issues for our

review:

     1.    Defense counsel was ineffective by failing to provide
     transcripts to [McCauslin] within a timely manner for the
     purposes of collateral relief.

     2.    Defense counsel was ineffective by failing to properly
     challenge [the] trial court’s order that [McCauslin] register for
     the remainder of his life pursuant to SORNA.

     3.     Defense counsel was ineffective for not objecting to the
     number of charges, on the grounds that they should have been
     reduced to remove redundant and/or merged charges, and
     further objecting to the sufficiency of charges before and during
     trial.

     4.    Defense counsel was ineffective for not properly objecting
     to and appealing the trial court’s jury instructions.

     5.     Defense counsel was ineffective for failing to interview and
     call witnesses on [McCauslin’s] behalf.

     6.     Defense counsel was ineffective on appeal because he
     failed to challenge the suppression of audio recordings.

     7.     Defense counsel was ineffective for failing to challenge the
     sufficiency of the evidence in light of the numerous
     inconsistencies of the alleged victim.

     8.   Defense counsel was ineffective by convincing McCauslin to
     admit to having intercourse with the victim.

     9.  Defense counsel was ineffective by failing to raise evidence
     demonstrating that [McCauslin] had no prior convictions.

     10. Defense counsel was ineffective for failing to introduce
     evidence that the victim made prior allegations to CYS that were
     determined to be unfounded.


                                      -3-
J-S18021-16


       11. Defense counsel was ineffective for failing to introduce
       evidence of lack of hue and cry.

       12. Defense counsel was ineffective for inadequately raising
       impeachment evidence which would contradict the testimony of
       [victim] and [victim’s mother].

       13. Defense counsel was ineffective for failing to object to . . .
       [the] testimony of Julian Darden [a friend of the victim].

       14. Defense counsel was ineffective for failing to object to
       Commonwealth’s exhibit [no.] 1. [victim’s school photo from
       third grade].

       15. Defense counsel was ineffective for failing to investigate
       and search the home of [victim’s mother].

       16. Defense counsel was ineffective for failing to interview or
       present Ryan Duntant [a family friend] as a witness.

       17. [McCauslin’s] constitutional rights were violated when the
       court erred in failing to maintain a full accurate record of
       proceedings, including voir dire, opening statements, and closing
       arguments.

       18. The Commonwealth violated the ABA Rules of Professional
       Conduct by failing to correct the false testimony of a witness.

       19. The Commonwealth violated the ABA Rules of Professional
       Conduct by prosecuting charges for which they have no probable
       cause.

       20.    [McCauslin’s] sentence was illegal.

Turner/Finley Brief, at 5-7.3

       Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by the evidence of record and
____________________________________________


3
  The proper mechanism for withdrawal on appeal from the denial of a PCRA
petition is to file a no-merit letter. Nevertheless, we will accept the brief in
lieu of a letter. See Commonwealth v. Widgens, 29 A.3d 816, 817 n.2
(Pa. Super. 2011).




                                           -4-
J-S18021-16



is free of legal error. The PCRA court’s findings will not be disturbed unless

there    is   no   support   for   those   findings   in   the   certified   record.

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing

Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)).

        First, we determine whether PCRA counsel has complied with the

technical requirements of Turner/Finley:

        Counsel petitioning to withdraw from PCRA representation must
        proceed under [Turner/Finley and] . . . must review the case
        zealously. Turner/Finley counsel must then submit a “no-
        merit” letter to the trial court, or brief on appeal to this Court,
        detailing the nature and extent of counsel’s diligent review of the
        case, listing the issues which petitioner wants to have reviewed,
        explaining why and how those issues lack merit, and requesting
        permission to withdraw.        Counsel must also send to the
        petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy
        of counsel’s petition to withdraw; and (3) a statement advising
        petitioner of the right to proceed pro se or by new counsel.
        Where counsel submits a petition and no-merit letter that satisfy
        the technical demands of Turner/Finley, the court — trial court
        or this Court — must then conduct its own review of the merits
        of the case. If the court agrees with counsel that the claims are
        without merit, the court will permit counsel to withdraw and
        deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations

omitted).     If counsel’s petition and no-merit letter satisfy Turner/Finley,

we then conduct an independent review of the merits of the case.             If this

Court agrees with counsel that the claims are meritless, we will permit

counsel to withdraw and deny relief. Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa. Super. 2007) (citing Commonwealth v. Mosteller, 633 A.2d

615, 617 (Pa. Super. 1993)).



                                       -5-
J-S18021-16



       On November 25, 2015, McCauslin’s counsel, Michael Halkias, Esquire,

filed with this Court a petition for leave to withdraw as counsel, averring that

after numerous conversations with McCauslin, he determined that an appeal

would be frivolous. Attached to the motion is a letter to McCauslin informing

him of this conclusion as well as McCauslin’s right to retain counsel or

proceed pro se. Attorney Halkias also provided McCauslin with a copy of the

brief, in which he set forth the issues McCauslin wished to raise.

Accordingly, counsel has complied with the Turner/Finley requirements.

       We have conducted an independent review of the record, and conclude

that the opinion authored by President Judge Hess in support of the order

denying     McCauslin’s     PCRA     petition    thoroughly   and   comprehensively

addresses Issues 1-19 raised by McCauslin on appeal.

       However, we separately address McCauslin’s claim that his sentence

was illegal.4 In denying relief, the PCRA court erroneously determined that

the issue was not eligible for relief pursuant to section 9543 because

McCauslin failed to allege an error that “was the result of a greater-than-

permissible sentence.”       PCRA Court Opinion, 3/30/15, at 9.        Instead, the

PCRA court reasoned, McCauslin “provided only vague and generalized


____________________________________________


4
  The fact that the trial court imposed concurrent sentences for each of the
three convictions does not render the purported error harmless. Where
crimes merge for the purpose of sentencing, a penalty cannot legally be
imposed on the lesser-included offense. “An illegal sentence must be
vacated.” Commonwealth v. Nero, 58 A.3d 802, 806 (Pa. Super. 2012).



                                           -6-
J-S18021-16



allegations of error which have no factual basis or legal reasoning.”               Id.

Attorney Halkias adopted this flawed analysis in his Turner/Finley brief,

noting that McCauslin’s claim that “[his] sentence was illegal in that [the]

charges were not properly merged . . . fail[s] to meet the requirements of

42 Pa.C.S.A. § 9543(a)(2) and therefore may not form the basis for a

meritorious PCRA claim.”        Turner/Finley brief, at 19.          While counsel is

correct in finding that McCauslin’s claim in not meritorious, his eligibility

analysis is erroneous.

      Section 9543 provides that in order to be eligible for PCRA relief, a

petitioner must plead and prove by a preponderance of the evidence several

facts, including, “[t]hat the conviction or sentence resulted from[:] (vii) The

imposition of a sentence greater than the lawful maximum.” 42 Pa.C.S. §

9543(a)(2)(vii).     “A claim that crimes should have merged for sentencing

purposes    raises    a     challenge   to     the   legality   of   the     sentence.”

Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa. Super. 2012). “It is

beyond cavil that illegal sentencing claims pertaining to a sentence that

exceeds    the     lawful   maximum      are     cognizable     under      the   PCRA.”

Commonwealth v. Concordia, 97 A.3d 366, 372 (Pa. Super. 2014).

      McCauslin raised the merger issue in his pro se PCRA petition and

attempted to establish the claim at the PCRA hearing.

      Section 9765 of the Sentencing Code, which governs merger of

sentences, provides:




                                        -7-
J-S18021-16


     No crimes shall merge for sentencing purposes unless the crimes
     arise from a single criminal act and all of the statutory elements
     of the offense are included in the statutory elements of the other
     offense. Where crimes merge for sentencing purposes, the court
     may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

     Here, McCauslin was convicted of aggravated indecent assault,

indecent assault and corruption of minors.

     Aggravated indecent assault is defined, in relevant part, as follows:

     § 3125. Aggravated indecent assault

     (a)   Offenses defined. – [A] person who engages in
           penetration, however slight, of the genitals or anus of a
           complainant with a part of the person’s body for any
           purpose other than good faith medical, hygienic or law
           enforcement procedures commits aggravated indecent
           assault if:

           (1)   the person     does   so    without   the   complainant’s
                 consent[.]

18 Pa.C.S. § 3125(a)(1).

     Indecent assault is defined, in relevant part, as follows:

     § 3126. Indecent assault

     (a)   Offense defined. – A person is guilty of indecent assault if
           the person has indecent contact with the complainant,
           causes the complainant to have indecent contact with the
           person or intentionally causes the complainant to come
           into contact with seminal fluid, urine or feces for the
           purposes of arousing sexual desire in the person or the
           complainant and:

           (1)   the person     does   so    without   the   complainant’s
                 consent[.]




                                    -8-
J-S18021-16



18 Pa.C.S. § 3126(a)(1). “Indecent contact” is defined as “[a]ny touching of

the sexual or intimate parts of the person for the purpose of arousing or

gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

     Corruption of minors is defined, in relevant part, as follows:

     § 3101. Corruption of minors

     (a)      Offense defined. –

     (1)(i) [W]hoever, being of the age of 18 years and upwards, by
     any act corrupts or tends to corrupt the morals of any minor less
     than 18 years of age, or who aids, abets, entices or encourages
     any such minor in the commission of any crime, or who
     knowingly assists or encourages such minor in violating his or
     her parole or any order of court, commits a misdemeanor of the
     first degree.

18 Pa.C.S. § 6301(a)(1)(i).

     Because the element of corruption of minors includes “any act [that]

corrupts or tends to corrupt” and requires neither indecent contact, sexual

contact, nor lack of consent, this offense does not merge with either of the

remaining     convictions   for   purposes   of   sentencing.         See   e.g.

Commonwealth v. Leatherby, 116 A.3d 732 (Pa. Super. 2015) (noting

that corruption of minors would not merge with indecent assault);

Commonwealth v. Fisher, 787 A.2d 992, 995 (Pa. Super. 2011) (“[B]y

their statutory elements alone, the offense of corruption of a minor is not

necessarily    a    lesser-included    offense    of   indecent       assault.”);

Commonwealth v. Hitchcock, 565 A.2d 1159, 1162 (Pa. 1989) (“A

corruption of minors charge, therefore, encompasses any such act, the

consequences of which transcends any specific sex act and is separately

                                      -9-
J-S18021-16



punishable.”). Therefore, this aspect of MCauslin’s merger claim is without

merit.

      We next consider McCauslin’s claim that his convictions for indecent

assault and aggravated indecent assault merge.       In Commonwealth v.

Allen, 856 A.2d 1251 (Pa. Super. 2014), we examined the relationship

between indecent assault and aggravated indecent assault in the context of

double jeopardy and determined that since each offense required an element

that the other did not, neither crime could be considered a lesser-included

offense.   We reasoned that (1) aggravated indecent assault required

penetration of the genitals or anus of the victim, an element that was not

required in order to commit indecent assault; and (2) indecent assault

required proof of the purpose of arousing sexual desire, which is not an

element of aggravated indecent assault. Id. at 1254. As it relates to the

instant matter, the Allen Court’s finding that indecent assault and

aggravated indecent assault were not greater-and-lesser included offenses

necessitates the corresponding conclusion that the PCRA Court did not err in

failing to merge those offenses for purposes of sentencing.

      We affirm the PCRA court’s determination that McCauslin is not

entitled to relief on his merger claim, albeit for different reasons.   With

respect to all other issues, we affirm the order of the PCRA court based on

President Judge Hess’ decision. We direct the parties to attach that decision

in the event of further proceedings in the matter.

      Order affirmed. Application to withdraw as counsel granted.

                                    - 10 -
J-S18021-16




BOWES, J., joins the memorandum.

STRASSBURGER, J., concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/26/2016




                                  - 11 -
                                                                              Circulated 01/27/2016 03:03 PM




 COMMONWEAL TH                                 IN THE COURT OF COMMON PLEAS OF
                                               CUMBERLAND COUNTY, PENNSYLVANIA
        v.
                                               CP-21-CR-2304-2011
 DONALD J. McCAUSLIN, JR.

                                 IN RE: P.C.R.A. PETITION

                                     BEFORE HESS, P.J.

                                    OPINION and ORDER

        Before this Court is Petitioner's first petition for relief under the Post-Conviction

 Relief Act, 42 Pa.C.S.A. § 9541 et seq. (Defendant's Motion for Post Conviction

Collateral Relief, tiled September 24, 2014). At trial, a jury convicted Petitioner of

aggravated indecent assault, indecent assault, and corruption of minors. (In Re:

Sentencing, filed November 8, 2012). On November 7, 2012, this Court sentenced

Petitioner to twenty-two to forty-eight months incarceration for aggravated indecent

assault, nine to twenty-four months incarceration for corruption of minors, and three to

twenty-four months incarceration for indecent assault with the sentences to run

concurrently;   (In Re: Sentencing, filed November 8, 2012).

       After post-trial motions were denied, Petitioner pursued a direct appeal to the

Superior Court claiming insufficient evidence to uphold the verdict and challenging the

constitutionality of life-time registration under the Sex Offender Registration and

Notification Act (SORNA). The Superior Court affirmed Petitioner's conviction on

November 19, 2013. Joseph Caraciolo, Esquire, represented Petitioner from the time of

his arrest through the end of his direct appeal. (Notes of Testimony, In Re: PCRA

Petition, February 5, 2015, 4 (hereinafter "PCRA N.T. at_")).       Petitioner filed his PCRA
petition    pro se and Michael Halkias, Esquire, was appointed to represent Petitioner at

his PCRA hearing.

           While there were nineteen allegations of error in Petitioner's pro se PCRA filing,

at the PCRA hearing some of the issues were merged and new ones were raised

through the course of testimony. In the end, Petitioner alleged seventeen claims of

ineffective assistance of counsel and two other grounds for error. Petitioner's specific

allegations are paraphrased as follows:

   1. Counsel was ineffective for failing to challenge the life-time registration
        requirement under SORNA. (PCRA N.T. at 5-6).
   2. Counsel was ineffective for failing to object and move for dismissal at the pretrial
        stage. (PCRA N.T. at 7).
   3. Counsel was ineffective for failing to provide transcripts. (PCRA N.T. at 9).
   4. Counsel was ineffective for failing to interview or impeach the victim. (PCRA
        N.T. at 11-12, 16, 24-25).
   5. Counsel was ineffective for failing to call witnesses. (PCRA N.T. at 13).
   6. Counsel was ineffective for failing to appeal the denial of the suppression of the
       wiretap. (PCRA N.T. at 15).
  7. Counsel was ineffective for "moving for acquittal and dismissal of charges at the
       time of trial." (PCRA N.T. at 16-17).
  8. Counsel was ineffective for waiving issues by failing to raise the issues on
       appeal. (PCRA N.T. at 17).
  9. Counsel was ineffective by convincing Petitioner to admit to having intercourse
       with the victim. (PCRA N.T. at 17).
  10. Counsel was ineffective for failing to inform the jury of Petitioner's clean prior
       record. (PCRA N.T. at 20-21).
  11. Counsel was ineffective for failing to introduce to the jury victim's prior false
      allegations to CYS. (PCRA N.T. at 21).
  12. Counsel was ineffective for failing to introduce evidence of hue and cry. (PCRA
       N.T. at 23).
  13. Counsel was ineffective for failing to object to Julian Darden's testimony. (PCRA
      N.T. at 27).
  14. Counsel was ineffective for failing to object to Commonwealth's Exhibit #1, an
      elementary school photo of the victim. (PCRA N.T. at 27).
  15. Counsel was ineffective for failing to search and investigate the home of Midori
    · Trippett, Petitioner's ex-wife. (PCRA N.T. at 28).
  16. Counsel was ineffective for failing to interview or present Ryan Duntan as a
      witness. (PCRA N.T. at 31).
  17. Counsel was ineffective for failing to provide complete transcripts of the opening
      statements and closing arguments. (PCRA N.T. at 32).


                                               2
    18. The Commonwealth violated the-ABA Rules of Professional Conduct by failing to
        correct the false testimony of a witness. (PCRA N.T. at 33).
    19. Petitioner believes he is incarcerated under an illegal sentence because his three
        convictions should have been merged for sentencing purposes. (PCRA N;T. at
        35).

Petitioner was the only witness on his behalf at the PCRA hearing. The Commonwealth

called Mr. Caraciolo to testify to his recollection of the trial.

       In evaluating a petitioner's PCRA petition, our Supreme Court has stated:

       To be eligible for PCRA relief, a petitioner must plead and prove by a
       preponderance of the evidence that his or her conviction or sentence
       resulted from one or more of the circumstances enumerated in 42 Pa.C.S.
       § 9543(a)(2). These circumstances include a violation of the Pennsylvania
       or United States Constitution and ineffective assistance of counsei which
       "so undermined the truth-determining process that no reliable adjudication
       of guilt or innocence could have taken place." Furthermore, a petitioner
       must establish that the claims of error raised in the PCRA petition have
       not been previously litigated or waived, and that "the failure to litigate the
       issue prior to or during trial, during unitary review or on direct appeal could
       not have been the result of any rational, strategic or tactical decision by
       counsel." An issue has been waived "if the petitioner could have raised it
       but failed to do so before trial, at trial, during unitary review, on appeal or
       in a prior state post[-]conviction proceeding." An issue has been
       previously litigated if "the highest appellate court in which the petitioner
       could have had review as a matter of right has ruled on the merits of the
       issue."

Commonwealth v. Chmiel, 30A.3d 1111, 1127 (Pa. 2011) (citations omitted).

The Pennsylvania Supreme Court has adopted a 3-part test when specifically

evaluating ineffective assistance of counsel claims: "(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." Id. The

Chmiel court clarified the reasonableness standard as follows:

       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." We will conclude that counsel's chosen


                                                3
       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. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (citations omitted).

Finally,the Chmiel court also established the burden the petitioner must meet to prove

prejudice:

        To establish·the third, prejudice prong, the petitioner must show that there
        is a reasonable probability that the outcome of the proceedings would
      . have been different but for counsel's ineffectiveness. "We stress that
        boilerplate allegations and bald assertions of no reasonable basis and/or
        ensuing prejudice cannot satisfy a petitioner's burden to prove that
        counsel was ineffectlve."

Commonwealth v. Chmiel, 30A.3d 1111, 1127~28(Pa. 2011) (citations omitted).

       With the Pennsylvania Supreme Court's standard in mind, a number of

Petitioner's allegations of ineffective assistance of counsel can be summarily denied.

Issues number 7, 8, 10, 12, and 17 are all boilerplate allegations of error. Specifically,

Petitioner was unable to further clarify or articulate exactly how those errors prejudiced

him, (PCRA N.T. at 16-17), or provide examples of issues which he could have raised

but for Mr. Caraciolo's alleged ineffective assistance, (PCRA N.T. at 33).

       Petitioner's first issue that counsel was ineffective for failing to challenge the

lifetime registration requirement under SORNA fails because it has no arguable merit.

Mr. Caraciolo stated that he challenged the lifetime registration requirement at

sentencing and on appeal. (PCRA N.T. at 40). Further, because of Petitioner's

Aggravated Indecent Assault conviction, Petitioner would be subject to the lifetime

registration regardless of whether or not Petitioner was labeled a sexual violent

predator. (PCRA N.T. at 40).




                                              4
       Petitioner's second claim of ineffective assistance of counsel because of a failure

to seek dismissal at the pretrial stage also fails because it has no arguable merit. Mr.

Caraciolo did seek a dismissal of the charges and was partially successful when the

charge of rape of child was dismissed. (PCRA N.T. at 36, 41).

       Petitioner's third claim of ineffective assistance of counsel for failing to provide

Petitioner with transcripts fails because it has no arguable merit and is a mere

boilerplate allegation of ineffective assistance. Mr. Caraciolo stated that he provided

transcripts to Petitioner as they became available, provided Petitioner with multiple

copies, and eventually provided Petitioner with all of the files that his office possessed

related to Petitioner's case. (PCRA N.T. at 41-42). Further, Petitioner, much like in

issue number 17, did not articulate a particular issue which he knew or believed might

be uncovered had he been provided with the transcripts in the time and manner he

wished. (PCRA N.T. at 10).

       Petitioner's fourth allegation of ineffective assistance of counsel based on Mr.

Caraciolo's failure to interview, cross-examine, and impeach the victim fails because it

has no arguable merit. Mr. Caraciolo stated that he cross-examined the victim at the

protection from abuse hearing, pretrial hearing, and at Petitioner's trial. (PCRA N.T. at

36~37). Further, Mr. Caraciolo was prepared to impeach the victim when she provided

inconsistent testimony, however any inconsistencies she offered at trial were

inconsequential and not material to the charges Petitioner faced. (PCRA N.T. at 42,

54).

       Petitioner's fifth claim of ineffective assistance of counsel for failing to call

witnesses to corroborate the theory that the allegations were fabricated fails because



                                               5
Mr. Caraciolo had a reasonable basis for not calling the witnesses. Mr. Caraciolo stated
              '                  '




that he interviewed the witnesses and discovered that they were unreliable or had

character issues of their own which would not aid in Petitioner's defense. (PCRA N.T.

at 44 ). Mr. Caraciolo had a reasonable basis for not putting Petitioner's proposed

witnesses on the stand and allowing the witness to testify did not offer a substantially

greater chance of success.

       Petitioner's sixth allegation that counsel was ineffective based on Mr. Caraciolo's

failure to appeal the denial of the suppression of the wiretap fails because the allegation

has no merit. Moreover, Mr. Caraciolo had a reasonable basis for not appealing the

portions of the wiretap that remained. Mr. Caraciolo testified that he was successful in

excluding prejudicial portions of the wiretap through his motion in limine. (PCRA N.T. at

45). The denial of the omnibus pretrial motion did not need to be appealed after

Petitioner's conviction because the motion in limine was successful and the remaining

portion of the wiretap actually assisted Petitioner in establishing his theory that a

consensual relationship existed between Petitioner and victim. (PCRA N.T. at 57).

       Petitioner's ninth claim of ineffective assistance of counsel alleging that Mr.

Caraciolo pressured Petitioner to admit to having intercourse with the victim fails

because the claim is without arguable merit. In addition, Mr. Caraciolo had a

reasonable basis for his advice. Petitioner made his own choice based on the advice of

Mr. Caraciolo, not based on a command or compulsion by Mr. Caraciolo. (PCRA N.T.

at 20, 45-46). Mr. Caraciolo chose what he believed to be the best option considering

the statements that Petitioner had made to Mr. Caraciolo and the fact that the wiretap




                                              6
 recording was notwholly excluded. (PCRA N.T. at 45-46). Petitioner offered no

 evidence or testimony that there was another more viable course of action.

      , Petitioner's eleventh claim of ineffective assistance of counsel complaining that

victim's prior false accusations to Children and Youth Services (CYS) were not

introduced to the jury fails because Mr. Caraciolo had a reasonable basis for excluding

that evidence. Petitioner contends that if the jury heard that the victim had made prior

false allegations it would support the theory that the current allegations were fabricated

as well. (PCRA N.T. at 23). There was simply no evidence that the victim had made

prior allegations or that the allegations had no merit. (PCRA N.T. at 46). Additionally,

Mr. Caraciolo properly concluded that any mention of prior allegations, even if proven

untrue, would be damaging to Petitioner's case as it would make the jury more

sympathetic to the victim. (PCRA N.T. at 47).

       Petitioner's thirteenth allegation of ineffective assistance of counsel as a result of

Mr. Caraciolo's failure to object to Julian Darden's testimony fails because Mr. Caraciolo

had a reasonable basis for allowing Ms. Darden to testify. Ms. Darden's testimony was

limited to the fact that Ms. Darden knew both the victim and Petitioner. (PCRA N.T. at

48). There was no mention in Ms. Darden's testimony that any sexual contact occurred

between the victim and Petitioner. (PCRA N.T. at 48). In Mr. Caraciolo's opinion, the

lack of testimony about such contact by someone who knew both of the parties actually

benefitted Petitioner. (PCRA N.T. at 48).

       Petitioner's fourteenth allegation of ineffective assistance of counsel based on

Mr. Caraciolo's failure to object to the Commonwealth's exhibit #1, the elementary

school photo of the victim fails because the allegation has no arguable merit, Petitioner



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 stated.that he felt that the photo was not relevant and was prejudicial to him. (PCRA

 N.T. at 28). However, the Pennsylvania Supreme Court has stated that "[p]ictures of

 the victim are not per se inadmissible. [A] court must determine whether the photograph

 is inflammatory. If not, it may be admitted if it has relevance and can assist the jury's

· understanding of the facts." Commonwealth       v. Wright,   961 A.2d 119, 138 (Pa. 2008)

 (determining the admissibility of photographs of a murder victim). In this case, the

 elementary school photograph of the victim is clearly not inflammatory, and is relevant

to the jury's understanding of the age and appearance of the victim at the time the

inappropriate contact allegedly began.

       Also lacking in merit is Petitioner's fifteenth claim that counsel was ineffective as

a result of the failure to search or otherwise investigate the home of Midori Trippett. In

fact, Mr. Caraciolo raised the proposition that Ms. Trippett encouraged the victim to

fabricate her story in order to achieve a financial advantage. (PCRA N.T. at 47). In this

regard, Mr. Caraciolo presented evidence of the funds Ms. Trippett withdrew from

Petitioner's account and the property she withheld. (PCRA N.T. at 47). Mr. Caraciolo

clearly investigated the matter and attempted to present a plausible motivation- for the

fabrication of the allegations to the jury.

       Petitioner's sixteenth, and final, claim of ineffective assistance of counsel is

based on Mr. Caraciolo's failure to offer Ryan Duntan as a witness.        A pretrial motion in ·

limine was filed in which Mr. Duntan's testimony regarding the victim's possible

pregnancy was precluded.      (PCRA N.T. at 49). The introduction of the testimony would

have violated the court's order. Further, Mr. Caraciolo believed that any mention that

the victim was pregnant or that she had been sexually involved with other people would



                                              8
 not only violate the Rape Shield Law, but would also garner sympathy           for the victim.

 (PCRA N.T. at 49).     Therefore,   Mr. Caraciolo   had   a reasonable basis for not calling Mr.

 Duntan to the stand.

       As to the two remaining issues which are not directly related to ineffective

assistance of counsel, Petitioner has failed to allege any error which: 1) has so

undermined the truth-determining process as to constitute a violation of either the

Pennsylvania or United States Constitution, 2) was the result of an unlawfully induced

guilty plea, 3) was the result of obstruction by the Commonwealth, 4) was the result of

newly discovered exculpatory evidence, 5) was the result of a greater-than-permissible·

sentence, or 6) was because the trial court lacked jurisdiction. 42 Pa.C.S.A. § 9543.

Instead, Petitioner provided only vague and generalized allegations of error which have

no factual basis or legal reasoning.

       Petitioner was originally charged with sixteen offenses and was convicted of

three of them, two of which he effectively admitted. (PCRA N.T. at 50). Mr. Caraciolo

ably represented Petitioner throughout the entire process. In summary, Petitioner has

failed to establish any error which suggests that counsel was ineffective, nor has he

established any other ground upon which he is entitled to relief under 42 Pa.C.S.A. §

9541 et seq.

                                             ORDER

      AND NOW, this         3 o·     day of March, 2015, upon consideration of Petitioner's

PCRA petition and after a hearing on the matter, it is hereby ORDERED and DECREED




                                                 9
that Petitioner's PCRA Petition is DENIED.

                                             BY THE COURT:


                                                     .4,     ;J.,




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