J-S53036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :        IN THE SUPERIOR COURT OF
                                           :              PENNSYLVANIA
                   Appellee                :
                                           :
            v.                             :
                                           :
DINESH BABU MANNEPULI,                     :
                                           :
                   Appellant               :            No. 571 MDA 2015

          Appeal from the PCRA Order entered on March 16, 2015
              in the Court of Common Pleas of Berks County,
             Criminal Division, No. CP-06-CR-0000881-2013

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED OCTOBER 22, 2015

      Dinesh     Babu   Mannepuli   (“Mannepuli”)   appeals   from   the   Order

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On October 13, 2012, Mannepuli sexually assaulted R.D. (“the

victim”), a nineteen-year-old female, in a shed located outside of her place

of employment in Berks County, a beer distributor. Mannepuli’s father and

uncle owned the beer distributor.     Two days after the assault, the victim

reported it to her general manager, and the victim reported it to the police

three days thereafter. Notably, the victim testified at trial that she did not

report the assault sooner because she was fearful of reprisals from her

employers (Mannepuli’s family members), and of losing her job.

      Following Mannepuli’s arrest, the Commonwealth charged him with two

counts of indecent assault, and one count of harassment.             The matter
J-S53036-15

proceeded to a jury trial, at which Mannepuli was represented by Jay Nigrini,

Esquire (“trial counsel”). The jury found Mannepuli guilty of all counts. In

November 2013, the trial court sentenced him to serve three to twenty-

three months in the county jail, followed by three years of probation.

      Mannepuli timely filed a direct appeal, challenging the weight of the

evidence. This Court affirmed.    See Commonwealth v. Mannepuli, 107

A.3d 235 (Pa. Super. 2014) (unpublished memorandum). Mannepuli did not

seek allowance of appeal with the Supreme Court of Pennsylvania.

      On October 29, 2014, Mannepuli filed the instant PCRA Petition,

alleging, inter alia, trial counsel’s ineffectiveness.      The PCRA court

subsequently conducted an evidentiary hearing on the PCRA Petition (“the

evidentiary hearing”), wherein trial counsel presented testimony concerning

his representation of Mannepuli. By an Order entered on March 16, 2015,

the PCRA court dismissed Mannepuli’s PCRA Petition. Mannepuli timely filed

a Notice of Appeal.    In response, the PCRA court ordered him to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Mannepuli timely filed a Concise Statement.

      On appeal, Mannepuli presents the following issues for our review:

        I. Did the honorable trial court err and/or commit an
           abuse of discretion when it denied a new trial upon
           review of [] Mannepuli’s [PCRA] Petition … on the
           grounds that trial counsel had a reasonable strategic
           basis for failing to request the prompt complaint jury
           instruction, where trial counsel did not state a
           reasonable, strategic basis for not requesting the
           prompt complaint jury instruction and conceded [that]



                                 -2-
J-S53036-15

            the jury instruction would not have been harmful to []
            Mannepuli’s case and could have been helpful?

        II. Did the honorable trial court err and/or commit an
            abuse of discretion when it denied a new trial upon
            review of [] Mannepuli’s [PCRA] Petition … on the
            grounds that trial counsel’s failure to request the
            prompt complaint jury instruction was not prejudicial to
            [] Mannepuli, because the credibility of the [victim]
            was the primary issue of the case, and because trial
            counsel conceded [that] the jury instruction would not
            have been harmful to [] Mannepuli’s case and could
            have been helpful?

Brief for Appellant at 4 (some capitalization omitted).

             This Court examines 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. Additionally, we 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. In this respect, we
      will not disturb a PCRA court’s ruling if it is supported by
      evidence of record and is free of legal error. However, we afford
      no deference to its legal conclusions.

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

(internal citations, quotation marks and brackets omitted).

      Both of Mannepuli’s issues challenge the PCRA court’s rejection of his

claims that trial counsel was ineffective. To prevail on such a claim,

Mannepuli must demonstrate “(1) that the underlying claim is of arguable

merit; (2) that counsel’s course of conduct was without a reasonable basis

designed to effectuate his client’s interest; and (3) that he was prejudiced

by counsel’s ineffectiveness[.]” Commonwealth v. Wah, 42 A.3d 335, 338

(Pa. Super. 2012) (citations omitted).       The PCRA court may deny an

ineffectiveness claim if the petitioner’s evidence fails to meet any of these

                                  -3-
J-S53036-15

prongs.        Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super.

2010).       Moreover, a PCRA petitioner bears the burden of demonstrating

counsel’s ineffectiveness.         Id.; see also Commonwealth v. Lesko, 15

A.3d 345, 380 (Pa. 2011) (stating that “[w]hen evaluating ineffectiveness

claims,      judicial   scrutiny   of   counsel’s   performance   must    be   highly

deferential.” (citation and internal quotation marks omitted)).

      Regarding the first prong of the ineffectiveness test, if the petitioner’s

underlying claim lacks arguable merit, his or her derivative claim of counsel’s

ineffectiveness necessarily fails.       Commonwealth v. Baumhammers, 92

A.3d 708, 722 n.7 (Pa. 2014).                 Concerning the second prong, our

Pennsylvania Supreme Court has stated that

      [g]enerally, counsel’s assistance is deemed constitutionally
      effective if he chose a particular course of conduct that had
      some reasonable basis designed to effectuate his client’s
      interests. Where matters of strategy and tactics are concerned,
      a finding that a chosen strategy lacked a reasonable basis is not
      warranted unless it can be concluded that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations,

quotation marks and brackets omitted).              Finally, to satisfy the prejudice

prong, it must be demonstrated that, absent counsel’s conduct, there is a

reasonable probability that the outcome of the proceedings would have been

different.      Commonwealth v. Charleston,              94 A.3d 1012, 1019 (Pa.

Super. 2014).




                                        -4-
J-S53036-15

      We will address Mannepuli’s issues simultaneously, as they both

concern trial counsel’s alleged ineffectiveness in failing to request a prompt

complaint jury instruction.

      This Court has stated that

      [t]he premise for the prompt complaint instruction is that a
      victim of a sexual assault would reveal at the first available
      opportunity that an assault occurred. The instruction permits a
      jury to call into question a complainant’s credibility when he or
      she did not complain at the first available opportunity. The
      propriety of a prompt complaint instruction is determined on a
      case-by-case basis[,] pursuant to a subjective standard[,] based
      upon the age and condition of the victim.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(citations and paragraph break omitted); see also Commonwealth v.

Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (stating that “if a complaint

is delayed substantially without any reasonable explanation, an inference

can be drawn regarding the credibility of that complaint and against whether

the incident in fact occurred.”) (emphasis added, citation omitted).

      In challenging trial counsel’s failure to request a prompt complaint

instruction, Mannepuli divides his Argument into three sections, asserting

that he meets all three prongs of the ineffectiveness test.     See Brief for

Appellant at 8-15. Pertaining to the first prong, Mannepuli argues that his

claim has arguable merit, i.e., a prompt complaint instruction was warranted

under the circumstances, since the victim’s “report was not made at the first

safe opportunity[.]” Id. at 10; see also id. (pointing out evidence that the

victim did not report the assault to her supervisor until two days thereafter,



                                   -5-
J-S53036-15

and waited five days to inform the police).         In support of this claim,

Mannepuli relies primarily upon Commonwealth v. Jones, 672 A.2d 1353

(Pa. Super. 1996), where this Court reversed the defendant’s conviction of

rape and remanded for a new trial where the victim did not report the rape

until nearly 24 hours thereafter, and the trial court gave an erroneous

prompt complaint jury instruction. See Brief for Appellant at 10-11.1

      Under the second ineffectiveness prong, Mannepuli contends that trial

counsel had no reasonable strategic basis in failing to request a prompt

complaint instruction.     See id. at 12-14.       Mannepuli challenges trial

counsel’s testimony at the evidentiary hearing that he had thoroughly called

into question the victim’s credibility, pointing out trial counsel’s statement on

cross-examination that the prompt complaint instruction “certainly could

have been” helpful. Id. at 13-14 (quoting N.T., 2/6/15, at 28).

      Finally, concerning the third ineffectiveness prong, Mannepuli argues

that the lack of a prompt complaint instruction prejudiced him, and affected

the outcome of the case, in that “[t]here was not overwhelming evidence of



1
  Contrary to Mannepuli’s assertion, we find Jones to be distinguishable and
unavailing. Initially, unlike in the instant case, the victim in Jones did not
report the assault until after the defendant had taken some of the victim’s
personal documents, and threatened not to return them unless she gave him
money. Jones, 672 A.2d at 1355, 1356. More significantly, Jones is
distinguishable because the trial court in that case did give an erroneous
prompt complaint instruction, using different language than that set forth in
the standard jury instruction. Id. at 1357. This Court held that the
instruction given did not adequately and clearly present the issue to the
jury, and actually bolstered the credibility of the victim, instead of casting
doubt upon it. Id.

                                   -6-
J-S53036-15

guilt[,]” and “the entire prosecution came down to the credibility of the

[victim].” Id. at 14.

      In its Opinion, the PCRA court addressed Mannepuli’s claims, set forth

the relevant trial testimony, and that of trial counsel at the evidentiary

hearing, and determined that trial counsel was not ineffective for failing to

request a prompt complaint instruction. See PCRA Court Opinion, 3/16/15,

at 4-10.    In sum, the PCRA court determined that (1) the victim had a

reasonable explanation for her delay in reporting the assault; (2) the delay

was not so substantial as to warrant a prompt complaint instruction; (3) trial

counsel had cross-examined the victim concerning her failure to report in

efforts to undermine her credibility; (4) trial counsel had a reasonable basis

for not requesting a prompt complaint instruction; and (5) even if the trial

court had given the instruction, it would not have changed the outcome of

trial. Id. at 9-10; see also Thomas, supra. The PCRA court’s analysis is

supported by the record and the law, and we agree with its determination

that trial counsel was not ineffective. Accordingly, we affirm on this basis in

rejecting Mannepuli’s ineffectiveness claim.      See PCRA Court Opinion,

3/16/15, at 4-10.

      As we conclude that the PCRA court neither abused its discretion nor

committed an error of law, we affirm the Order dismissing Mannepuli’s PCRA

Petition.

      Order affirmed.




                                  -7-
J-S53036-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2015




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                                                                                              Circulated 10/02/2015 02:36 PM




., ....,
(\j            COMMONWEALTH                 OF PENNSYLVANIA               IN THE COURT OF COMMON PLEAS
                                                                          BERKS COUNTY, PA
                                        v.                                CRIMINAL DIVISION
                                                                          NO. CP-06-CR-881/013
                          DINESH MANNEPULI                                JUDGE THOMAS G. PARIS I

           John A. Abom, Esquire, PCRA Attorney for the Petitioner
           Kenneth Kelecic, PCRA Attorney for the Commonwealth

           OPINION AND ORDER, Thomas G. Parisi                                                      March 16, 2015

                 After hearing held on the Petitioner's Petition for Habeas Corpus Relief Under Article

           I, Section 14 of the Pennsylvania Constitution and for Statutory Post-Conviction Relief

           Under the Post Conviction Relief Act ("PCRA"), pursuant to 42 Pa. C. S. A. § 9541 et

           seq. and his amended petition, this Court finds that the Petitioner is not entitled to relief.

                                                   PROCEDURAL HISTORY

                 On December 5, 2012, the Petitioner was charged with one count oflndecent Assault

                                        1
           (forcible compulsion),            one count of Indecent Assault (without consent),2 and summary

           Harassment.3 On March 8, 2013, Attorney Jay M. Nigrini [hereinafter "Trial Counsel"]

           entered his appearance on behalf of Petitioner. On September 27, 2013, following a jury

           trial, the Petitioner was convicted of one count of Indecent Assault (forcible compulsion),

           one count oflndecent Assault (without consent), and one count ofHarassment.             On

           November 6, 2013, this Court sentenced the Petitioner to not less than three months nor

           more than twenty-three months of incarceration, followed by a period of three years

           probation. On January 16, 2014, the Appellant appealed the outcome of his case, alleging

           that:


           1
               18 Pa.C.S.A. § 3126(a)(2).
           2
               18 Pa.C.S.A. § 3!26(a)(l).
           3
               18 Pa.C.S.A. § 2709(a)(l ).
                                                                                      Circulated 10/02/2015 02:36 PM




            1. The trial court erred in denying Appellant's post-sentence motion that the verdict
               was against the weight of the evidence in light of the admission of a civil demand
               letter from the victim's attorney seeking $1.5 million dollars from Appellant's
               cmployers.:
'l""'
0
(\!        2. The verdict was against the weight of the evidence based upon the testimony of
''
¢'.)
N
              numerous witnesses that established the complaining witness lied, evidence that
'
·id·'
              established the complaining witness lied, evidence that established the
              complaining witness specifically requested to work for the Appellant after she
              was allegedly molested by the Appellant on two earlier occasions, evidence that
              established a financial motive to fabricate allegations and evidence that
              established a legitimate reason for entering the shed where the assault allegedly
              occurred.

        Petitioner's Concise Statement of Matters Complained of on Appeal, 1/16/14.

        Pending direct appeal, this Court permitted Petitioner to serve the probationary portion of

        his sentence, deferring the jail term until after his appeal. The Superior Court of

        Pennsylvania affirmed on September 24, 2014.

               On November 3, 2014, Petitioner filed a Petition for Post-Conviction Collateral

        Relief Pursuant to 42 Pa.C.S.A. § 9541, et seq. Petitioner raises the following claims in

        his PCRA Petition:

                    1. The Petitioner was denied his constitutionally guaranteed right of
                       ineffective assistance of counsel:

                           a. Trial Counsel failed to reque_st the Prompt Complaint jury
                              instruction, despite the Complainant's five (5) day delay in making
                              the allegation, warranting the instruction;

                           b. Trial Counsel failed to call a Megan Witters, a known witness who
                               was under subpoena and present during the first day of trial. Ms.
                               Witters would have testified that she worked at a neighboring
                               business, observed the complainant and Mr. Mannepuli enter the
                               storage shed on the day of the alleged crime but did not hear any
                             . scuffle while they were inside nor did she observe the Complainant
                               as upset upon departing the shed;

                           c. Trial Counsel failed to object to the Commonwealth's introduction
                              of prior bad acts evidence consisting of other alleged incidents
                              involving the Complainant;



                                                      2
                                                                              Circulated 10/02/2015 02:36 PM




                   d. Trial Counsel said in a closing argument "we are here today
                       because Mr. Mannepuli has said I'm not guilty" (N.T. Pg. 243),
                       "There is no way for Defendant to prove to you that it didn't
                       happen other than to be here and say I didn't do it. I'm not guilty."
                       (N.T. Pg. 249-50) and the Complainant "is making allegations no
                       one can disprove" (N.T. Pg. 249-50) Had the prosecutor made such
                       statements, a mistrial would have been warranted, in light of Mr.
                       Mannepuli's assertion of his right not to testify.

            2. Conviction also "resulted from ... [t]he unavailability at the time of trial
               of exculpatory evidence that has subsequently become available and
               would have changed the outcome of the trial if it had been introduced."
               42 Pa.C.S.A. § 9542(a)(2).

                   a. The new evidence consists of a letter from Ms. D~ivil         attorney
                      dated November 7, 2013, demanding a settlement~l,500,000.
                      This evidence was not discoverable at trial as it did not yet exist,
                      but is the first time a dollar figure is placed on Ms.Dtl' s civil
                      suit.

Petitioner's PCRA Petition, 11/3/14, at 3-4.

This Court held an evidentiary hearing on the Petitioner's PCRA Petition on February 6,

2015. Afterreviewing the entire record in this case and considering the arguments and

evidence presented by the Petitioner at the PCRA hearings, this Court finds that the

Petitioner is not entitled to relief under the PCRA.

                                      DISCUSSION

       I.      Ineffective Assistance of Counsel

       To prevail on a claim of ineffective assistance of counsel, the defendant bears the

burden of establishing each of the following: 1) his underlying claim is of arguable merit;

2) the course of conduct pursued by counsel did not have a reasonable basis designed to

effectuate the defendant's interests; and, 3) counsel's actions prejudiced the defendant, in

that, but for counsel's actions the outcome of the proceeding would have been different.

Commonwealth v. Meadows, 787 A.2d 313 (Pa. 2001); Commonwealth v. Ervin, 766



                                               3
                                                                                  Circulated 10/02/2015 02:36 PM




        A.2d 859, 862 (Pa. Super. 2001). Thus, counsel's assistance is deemed constitutionally
.
-.e•<
        effective if the particular course chosen by counsel had some reasonable basis designed

        to effectuate the client's interest.

                i. Prompt Complaint Instruction

                The Petitioner's first claim is that Trial Counsel was ineffective for failing to

        request the Prompt Complaint jury instruction, despite the victim's five (5) day delay in

        making the allegation, warranting the instruction.

                "The premise for the prompt complaint instruction is that a victim of a sexual

        assault would reveal at the first available opportunity that an assault occurred."

        Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). The propriety of a

        prompt complaint instruction is determined on a case-by-case basis pursuant to a

        subjective standard based upon the age and condition of the victim." Id.          This is

        especially true where the perpetrator is one with authority or custodial control over the

        victim. Commonwealth v. Ables, 590 A.2d 334, 340 (Pa. Super. 1991), appeal denied,

        597 A.2d 1150 (Pa. 1991).

                The incident in this matter took place on October 13, 2012. At trial, the victim

        was asked about when she reported the incident:

                COMMONWEALTH:                        Did you immediately tell anyone that this
                                                     had happened, right then that day?

                                                     No.

                COMMONWEALTH:                        Why not?

                                                     I knew if I would have told, I would have
                                                     got in trouble.

                COMMONWEALTH:                        With who?




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RIIIIIIII   D.
COMMONWEALTH:
                  His father or his uncle.

                  And who were they to you?

                  My bosses.

COMMONWEALTH:     And how are they your bosses?

RmiDII            They own the place; the whole area; all the
                  buildings.

COMMONWEALTH:     Okay. How did you feel about the fact that
                  this had happened to you?

                  Horrible.

COMMONWEALTH:     How so?

                  Every night I have horrible nightmares, and
                  I wake up - I just can't breathe. I'm scared I
                  might hurt myself.

COMMONWEALTH:     Did this start right away or did this develop
                  over time.:

                  I just kept getting worse.

COMMONWEALTH:     Okay. Did you eventually report this to
                  anyone at work?

                  I eventually reported it to Deborah.

COMMONWEALTH:     Who is Deborah?

                  She was right under Dinesh as manager.

COMMONWEALTH:     Was she your supervisor?

                  She was basically my boss.

COMMONWEALTH:     Do you remember when you told her about
                  it?

                  It might have been the day afterward, after ,
                  or a few days approximately after.




                  5
                                                                                      Circulated 10/02/2015 02:36 PM




               COMMONWEALTH:                          Okay. And did you tell anyone else?

                                                      I told the other manager Luis the day after.

Lt;
T""'
               COMMOWNEALTH:                          Did you tell him personally or did you tell
                                                      him on the phone?

                                                      Itold him over the phone. Luis.

               COMMONWEAL TH:                         And what made you decide to tell him?

                                                      For extra support when I would confront the
                                                      big bosses.

       Notes of Testimony [hereinafter "N.T."], 9/26/13, at 76-78.

       · On October 18, 2013, the victim met with Deborah Diaz, Luis Alicea, and Petitioners'

       father and Uncle to report the incident that took place on October 13, 2012. N.T. at 78-

       79. The victim testified at trial that Petitioner's family told her not to go to the police and

       that "they would handle it within their family." N.T. at 80. The victim testified that she

       reported the incidentto the police on October 18, 2012. N.T. at 80. Prior allegations of

       inappropriate behavior on behalf of Appellant did surface in the victims' report to police

       on October 18, 2012. N.T. at 79; see Defense Ex. No. 9, at 2.     The victim alleged that the

       Appellant had made sexual advances towards her in August and September of 2012. N.T.

       at 81-84; Defense Ex. No. 9, at 2. At trial, it was confirmed that these incidents remained

       unreported until October 18, 2012. N.T. at 79, 99. When the victim was asked why she

       didn't quit her job or try to find another job after the incidents, the victim stated that she

       was scared to tell anyone about the incidents and did not have internet to look for another

       job and had bills to pay. N.T. at 84, 99. The victim further testified that on September 17,

       2012, she specifically requested to only work for Appellant and Luis at the Arby's. N.T.

       at 100-101.




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                Luis Alicea, the general manager at the Arby's in Sinking Spring, testified that he
..
•icy··
         received a phone call from the victim on October 15, 2012. N.T. at 139. During this

         phone call the victim told Alicea that Petitioner had forced himself on her in the Beer

         Mart storage shed. N.T: at 139-40. Deborah Diaz, the assistant general manager of the

         Arby's in Sinking Spring, testified that she noticed a change in the victim's working

         attitude. N.T. at 153-54. Diaz pulled the victim aside at work and asked to speak with her

         about her change in attitude. N.T. at 154. The victim went on to explain the incident that

         took place in the Beer Mart shed where Petitioner forced himself onto her. N.T. at 154.

         Diaz confirmed that this conversation took place within a week of the October 18, 2012

         meeting.

                At the PCRA hearing Trial Counsel was asked why he did not request the prompt

         complaint instruction to be ready to the jury.

                TRlAL COUNSEL:                 It was not a long period of time in between the
                                               alleged incident that was the subject of this
                                               particular case and eventually going to the police. I
                                               believe it was two days. And again, arguably, in
                                               terms of our theory of why this young lady was
                                               making the allegation, the motive, the credibility for
                                               that, and I believe that she had even testified at trial
                                               as to the reasons why she did not notify anyone
                                               right away.

                                                I believe it was her testimony on cross-examination
                                                that she internalized this situation, and then finally
                                                after a day or two, that's when she mentioned
                                                something, I believe, to her family and then they
                                                went to - then they went to, I believe, management
                                              . and, then to the police or to the police and then
                                                management. That also was an issue of cross-
                                                examination of her, who she actually reported it to
                                                first.

         Notes of Testimony [hereinafter "N.T"], 2/6/15, at 20-21.




                                                          7
                                                                                Circulated 10/02/2015 02:36 PM




         When asked about his strategic basis for not requesting the instruction concerning

 the first two sexual incidents in August and September, Trial Counsel stated the

 following:

         TRIAL COUNSEL:                 Number one, it was not a rape. This was a touching
                                        of her breast. And again, based upon the answers
                                        that she had given, her explanation for that, and the
                                        basis for our theory of why she was making this
                                        allegation, I believe that established reasons why
                                        that her credibility was not to be believed.


         TRIAL COUNSEL:                 Once again, I had argued to the jury that it was to
                                        me inconceivable that a young lady, with all. due
                                        respect, working a minimum wage job at a fast food
                                        restaurant with these things taking place, would not
                                        have quit, left, gone somewhere else, and then
                                        furthermore, you know asked to speak - or asked to
                                        work under Mr. Mannepuli if those two first things
                                        had occurred. So more so I believe it was argued
                                        that her credibility fails whether or not I ask for a
                                        prompt complaint about those first two or not.

         Prompt reporting to public authority is not required in prosecution of a sexual

 offense. 18 Pa. C.S.§ 3105. If a complaint is delayed substantially without any reasonable

 explanation, an inference can be drawn regarding the credibility of that complaint and

· against whether the incident in fact occurred. Commonwealth v. Snoke, 580 A.2d 295,

 297 (Pa. 1990). Questions of credibility must always be put before the jury as the fact

 finder and the judge must instruct the jury as to credibility considerations applicable to

 the case. Commonwealth v. Smith, 467 A.2d 1120 (Pa. 1983); Commonwealth v. Holmes,

 486 Pa. 415, 406 A.2d 510 (1979); Commonwealth v. Hampton, 341 A.2d 101 (Pa.

 1975); Commonwealth v. Murray, 334 A.2d 255 (Pa. 1975).

         Although Appellant claims the incident was not reported until five (5) days after

 the incident, the trial record belies this statement In this matter, it is clear that the victim



                                                8
                                                                                    Circulated 10/02/2015 02:36 PM




....   reported the incident to her supervising manager, Luis Alicea, on October 15, 2015, two
,,\j

       days after the incident. Although Deborah Diaz did not provide an exact date of her

       conversation with the victim concerning the sexual assault, it is apparent that the

       conversation happened prior to the October 18, 2012 meeting with Arby's management

       as well. At trial, Trial Counsel cross-examined the victim concerning her failure to report

       the first two incidents and the fact that she requested to work directly under Appellant

       after the August incident occurred. Trial Counsel focused on the fact that the victim did

       not quit her job nor did she search for a job after the incidents in August and September

       of 2012. The victim's reasons for failing to report prior to October 15, 2012 also were

       explained through her testimony at trial. Additionally, the trial judge did instruct the jury

       thoroughly upon the general subject of credibility in accordance with the suggested

       instruction for witness credibility, PA Suggested Standard Jury Instructions (Crim.) §

       4.17.

               Although the complaint in this matter was delayed, a reasonable explanation for

       the delay was provided by the victim. Additionally, the delay in reporting was not so

       substantial as to require a prompt complaint instruction. The testimony provided by the

       victim properly allowed the jury to draw an appropriate inference regarding her

       credibility of that complaint and against whether the incident in fact occurred. Trial

       Counsel reasonably questioned the victim about her failure to report the three incidents

       thereby proving the course of conduct pursued by Trial Counsel did have a reasonable

       basis designed to effectuate the Appellants interests. Trial Counsel's failure to request the

       prompt complaint jury instruction was also not essential considering the § 4.17

       instruction given by the trial judge provided the jury with the factors that are properly




                                                     9
                                                                             Circulated 10/02/2015 02:36 PM




considered in ascertaining the credibility of the victim's testimony. After reviewing the

entire record in this case and considering the arguments and evidence presented, Trial

Counsel had a reasonable basis for not requesting the prompt complaint instruction, and

the lack of this instruction would not have changed the outcome of trial. Therefore, this

claim is meritless.

        ii.     Failureto Call Known, Present Witness

        The Petitioner's next claim is that Trial Counsel was ineffective for failing to call

a Megan Witters, a known witness who was under subpoena and present during the first

day of trial.

    When a defendant claims counsel was ineffective based upon Trial Counsel's failure

to call a witness, he is entitled to relief only if he proves all of the following: (a) the

witnesses existed, (b) the witnesses were available, ( c) counsel was informed of or should

have known of the witnesses, ( d) the witnesses were willing to cooperate and testify for

the defendant at trial, and ( e) how the absence of the witnesses' testimony prejudiced the

defendant, in that it denied him a fair trial. Commonwealth v. Miller, 868 A.2d 578, 581-

582 (Pa. Super. 2005). Furthermore, a claim based on counsel's failure to call a potential

witness involves trial strategy. Commonwealth v. Auer, 681 A.2d 1085 (Pa. 1996).

Where trial strategy is implicated, counsel is deemed effective so long as the particular

course chosen by counsel had some reasonable basis designed to effectuate his client's

interests, even if other alternatives were more reasonable. Commonwealth v. Gillespie,

620 A.2d 1143, 1145 (Pa. Super.1993) (emphasis added). Thus, it is well settled that a

failure to call a witness whose testimony may be helpful to the defendant does not

constitute ineffective assistance if counsel had a reasonable basis for declining to call the




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      witness.   Commonwealth Pittman, 441 A.2d 436, 438 (1982 Pa. Super.). Stated another

      way, the balance tips in favor of finding effective assistance as soon as it is determined

l()   that Trial Counsel's actions had any reasonable basis. Hull, 982 A.2d at 1023.

          After reviewing the record, including the evidence presented at the PCRA hearing,

      Trial Counsel in the present case was not ineffective for failing to call Megan Witters on

      the Petitioner's behalf. Although Witters' testimony may have been helpful to Petitioner,

      it is clear counsel had a reasonable basis for declining to call her as a witness.

          At the PCRA hearing, Ms. Witters testified that she worked at the Supercuts

      neighboring the Beer Mart's4 storage shed where the indecent assault took place. Ms.

      Witters confirmed that she provided two statements concerning the incident, one to

      Arby's management and one to police. While working at the Supercuts, a manager of the

      neighboring Arby's asked Ms. Witters to come to the Arby's to provide a written

      statement of what she witnessed outside the shed on October 13, 2012. Ms. Witters was

      also told that she would be paid for her time taken to write the statement. Ms. Witters

      testified that when she arrived at Arby's, she was given a previously formulated

      statement, which she then refused to sign. Ms. Witters turned over the formulated

      statement and drafted her own written statement on the back of the paper, which she then

      signed. She testified at the PCRA Hearing that she told both the police and Trial Counsel

      about the formulated statement and offer of payment extended to her by Arby' s

      management.




      4
       The victim was an employee at 422 Beer Mart, a beer distributor business in South Heidelberg Township,
      Berks County and an employee at the Arby's Restaurant in South Heidelberg Township, Berks County. The
      Defendant was the victim's manager at the Beer Mart and Arby's Restaurant. Testimony indicated both
      businesses are owned by Defendant's family.


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,-       At the PCRA Hearing, Trial Counsel confirmed that Witters was under subpoena with
(\j


      the belief that she might be called to testify at Petitioner's trial. Trial Counsel confirmed

      that the basis of her testimony pertained to the moment in time when Petitioner and the

      victim left the storage shed on October 13, 2012. Witters' testimony was to focus on the

      fact that she did not notice anything unusual as the victim and Petitioner came out of the

      shed on that date. Trial Counsel explained that at trial, the victim confirmed she did not

      come out of the storage shed distraught or upset. Based on the victim's testimony, Trial

      Counsel believed it was better not to call Witters to testify on Petitioner's behalf. At the

      PCRA Hearing, Trial Counsel stated that he did not want the issue of the formulated

      statement and offer of payment to negatively impact the jurors' perspective of Petitioner

      and his family. Trial Counsel believed as part of his trial strategy, it was better not to call

      Witters to testify, especially since evidence of the formulated statement and offered

      payment were included in part of the police interview report with Witters.

         Based on Witters' testimony at the PCRA Hearing, it is apparent that Trial Counsel

      had a reasonable basis for not calling her to testify. Trial Counsel. was able to avoid

      potential issues by deciding not to call her. The fact that Arby's management offered

      Witters payment to sign a formulated statement could have been viewed as inappropriate

      by the jury. Additionally, the victim testified at trial that she did not leave the storage

      shed distraught or upset. Witters would have merely been reiterating the emotions already

      admitted to by the victim if she had been called to testify. Once the victim testified, the

      usefulness of Witters' testimony was outweighed by the potential damaging impact her

      testimony could have had on Petitioner. After reviewing the entire record in this case and

      considering the arguments and evidence presented, Trial Counsel had a reasonable basis




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';"'"'   not       to     call     Witters,     thereby      making      this     claim      meritless.

               iii. Failureto Object to Prior Bad Acts Evidence

IS)            Petitioner further claims that he was prejudiced by Trial Counsel's failure to object to

         admission of the testimony regarding two (2) prior allegations of inappropriate behavior,

         for which Petitioner was not charged criminally.

               At the PCRA hearing, Trial Counsel testified that he was aware that the

         Commonwealth intended to introduce evidence of the two prior allegations of

         inappropriate behavior by Petitioner. Based upon Trial Counsel's trial strategy, he

         allowed for the evidence to be admitted in order to attack the victim's credibility. Trial

         Counsel explained at the PCRA Hearing that trial testimony was provided showing the

         victim went directly to management after the two allegations and threatened to quit her

         job unless she was able to work directly under Petitioner. Trial Counsel then used this

         information at trial to show that the victim lacked credibility in her testimony concerning

         the assault that took place on October 12, 2013. Trial Counsel believed that the

         allegations were in fact helpful to his case rather than harmful, which is why he did not

         object to the introduction of the prior bad acts evidence. By showing the jury that the

         victim specifically requested to work with Petitioner after allegedly being inappropriately

         touched by him, Trial Counsel believed the jury would find victim's testimony to be

         untrustworthy.

                  After reviewing the entirety of the evidence against the Petitioner presented at

         trial, this Court finds that there is not a reasonable probability that references to or any

         other statements about the Petitioner's prior bad acts adversely affected the outcome of

         the Petitioner's trial. Furthermore, Trial Counsel had a reasonable basis for allowing




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      such evidence to be admitted. The Petitioner was not prejudiced by Trial Counsel's

      failure to object to the admission of prior bad acts testimony.

              rv.    ImproperComment on Assertion of Right to Silence by Trial Counsel
                     in Closing Argument

              Petitioner claims that Trial Counsel made remarks in his closing argument that

      were improper and ineffective. Petitioner believes the remarks made by Trial Counsel left

      the jury with an impression that Petitioner's silence could be used against him in

      deliberations. In Trial Counsel's closing argument, he stated "we are here today because

      Mr. Mannepuli has said I'm not guilty" Notes of Testimony [hereinafter "N.T."], 9/26/13,

      at 243. "There is no way for Defendant to prove to you that it didn't happen other than to

      be here and say I didn't do it. I'm not guilty." Id. at 249-250.

              When Trial Counsel was asked about these comments at the PCRA Hearing he

      explained his reasoning for making such statements. Trial Counsel stated that he wanted

      to reiterate to the jury the law that they were sworn to follow the law and that it was _not

      the Petitioner's responsibility to take the stand and testify that he did not commit the

      crime. Trial Counsel wanted to remind the jury that the Petitioner did not carry the

      burden of proof nor was it his responsibility to prove his innocence. Trial Counsel further

      confirmed that in no way was it his intention to point out Petitioner's silence.

              This Court rejects the contention made by Petitioner that Trial Counsel's

      statements improperly influenced the jury. Trial Counsel in no way misled the jury

      concerning Petitioner's right no to testify nor did his statements lessen the

      Commonwealth's burden of proof. Any prejudice resulting from Trial Counsel's

      statements, which were at most "de minimus" were obviated by the "Defendant's Failure

      to Testify" instruction given by the trial court:



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        [T]he defendant chose not to testify in this case and it is entirely up to the
        defendant in any criminal trial whether or not to testify. The defendant has an
        absolute right founded on the Constitution to remain silent, and you must not
        draw any inference of guilt or any other inference which is adverse to the
        defendant from the fact that the defendant did not testify.

N.T., 9/27/13, at 237; see Pa. SSJI (Crim), §3.1 OA (2006).

A jury is presumed to follow the trial court's instructions. Commonwealth v. Travaglia,

28 A.3d 868, 882 (Pa. 2011 ). The Petitioner failed to provide any evidence at the PCRA

Hearing that the jury failed to follow the trial court's instructions in this case. Furthermore,

Trial Counsel explained at the PCRA Hearing that he made the statements so the jury

would recognize that the burden of proof did not sit with Petitioner. Therefore, Trial

Counsel had a reasonable basis for making these statements which were designed to

effectuate the client's interest. As a result, Petitioner has failed to establish Trial

Counsel's ineffectiveness concerning these statements.

        II.     Newly Discovered Evidence

        Petitioner's final claim is that newly discovered evidence, unavailable at the time

of trial, has subsequently become available and would have changed the outcome of trial

if it had been introduced. See 42 Pa.C.S.A. § 9543(a)(2)(vi). Petitioner points specifically

to a demand letter dated November 7, 2014, which was sent by the victim's civil attorney

demanding a settlement of $1,500,000 for sexual harassment and emotional distress.

Petitioner believes that had the demand letter been available and introduced at the time of

trial, it would have changed the outcome of the trial by doing more than impeaching the

victim's credibility.

        To obtain relief based upon newly-discovered evidence under the PCRA, a

petitioner must establish that: (1) the evidence has been discovered after trial and it could

not have been obtained at or prior to trial through reasonable diligence; (2) the evidence


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is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would

likely compel a different verdict. See Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa.

1998); Commonwealth v. Williams, 732 A.2d 1167, 1180 (Pa. 1999).

        To qualify as exculpatory evidence, the newly discovered evidence must tend "to

establish defendant's innocence of the crimes charged, as differentiated from that which,

although favorable, is merely collateral or impeaching." Commonwealth v. Redmond, 577

A.2d 547, 552 (Pa. Super. 1990); Commonwealth v. Shuck, 164 A.2d 13, 17 (Pa. 1960),

cert. denied, 368 U.S. 884 (1961) ("evidence ... must not be cumulative or merely

impeach credibility").

        At trial, Trial Counsel asked the victim what she expected to get out of hiring a

lawyer to handle her pending civil actions. N.T., 9/26/13, at 103-04, 109-11. Trial

Counsel asked the victim how much money she expected to obtain from her civil claims.

Id. at 110-11. The victim responded by stating that she would rather see Petitioner

punished and that she did not care about recovering any money as a result of her civil

claims. Id. at 111. The victim confirmed the her reason for hiring an attorney was because

she knew that Petitioner's family, the owners ofthe Beer Mart, would try to accuse her of

lying about the assault. Id. at 85. The victim stated that she believed an attorney would

help punish the man who hurt her and caused her family to suffer. Id. at 86. When the

victim was asked if she had received any monetary reward as a result of the assault, the

victim replied that she had only received unemployment benefits. N.T., 9/26/13, at 87.

The victim went on to explain that she believed that by hiring an attorney, she would be

able to regain her freedom that she had lost since the assault. Id. at 86-87. The victim

testified that she was seeing a therapist as a result of the assault due to severe depression




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and fear of having a male boss in the workplace. Id. The victim did testify that she had

not withdrawn her pending civil actions filed against Petitioner at the time of the criminal

trial. Id.

         Petitioner contended in his appeal to the Superior Court that the trial court erred in

denying his post-sentence motion because the verdict was against the weight of the

evidence in light of the admission of the civil demand letter seeking $1. 5 million dollars

from Petitioner's employers. See Concise Statement of Errors Complained of on Appeal,

1/16/14. The Superior Court stated the following in its denial of Petitioner's appeal:

         With respect to the settlement demand, the trial court writes as follows:

                this is simply not a case where proof of pending civil actions are so clearly
                of greater weight than the facts resulting in the adjudication that to ignore
                them or to give them equal weight with all the facts would be to deny
                Appellant justice. The fact that Ms. D.as       taken civil action against
                Appellant was established by Defense counsel at trial. Furthermore, the
                jury was aware of such pending claims against Appellant before
                determining a verdict. Trial Court Opinion, 2/6/14, at 3.

         We agree with the trial court. The demand lettersimply has no bearingon the
         case.

Superior Court Memorandum, 9/24/14, at 4 ( emphasis added).

         This Court finds evidence of a $1.5 million demand letter would have merely

acted as an extra tool to impeach the credibility of the victim, which is not exculpatory

for purposes of §9543(a)(2)(vi). Newly discovered evidence must tend to establish

defendant's innocence of the crimes charged. Evidence of the value included in the

demand letter may have shown the victim's underlying reasoning for filing the civil claim

letter to be less credible, but the value demanded in the letter would not have been likely

to compel a different verdict from the jury. The numeric value included in the demand

letter is nothing but collateral evidence at this point, bearing in mind the jury was notified



                                               17
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'j'""
        of the civil claim pending against Petitioner prior to determining a verdict. The added
..
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        evidence of the actual value requested by the victim in the demand letter is not enough at

        this point to entitle the Petitioner to a new trial. Therefore, this claim is rneritless.




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