J-S60022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PAUL BRANDON SELLERS                       :
                                               :
                       Appellant               :   No. 1779 MDA 2017

                 Appeal from the PCRA Order October 26, 2017
     In the Court of Common Pleas of Columbia County Criminal Division at
                       No(s): CP-19-CR-0000503-2010


BEFORE:       SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 20, 2019

        Appellant Paul Brandon Sellers appeals from the order denying his first

petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Appellant claims trial counsel was ineffective for: (1) failing to object

during the Commonwealth’s opening statement to the jury; (2) failing to

object to the court’s responses to questions from the jury during deliberations;

and (3) introducing evidence of prior sexual abuse of the victim. We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On July 1, 2010, Sherry Moroz (Moroz) of the Child Advocacy Center

conducted a forensic interview with the ten-year-old victim (Victim). Officer

Kenneth Strish (Officer Strish) of the Berwick Police Department was also

present. During the interview, Victim said that Appellant, his father, sexually

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*   Retired Senior Judge assigned to the Superior Court.
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abused him on multiple occasions. Victim also alleged that his stepmother,

Appellant’s wife, participated in the abuse. Later that day, the Commonwealth

filed criminal complaints charging Appellant and his wife with various sex

offenses.

      Appellant and his wife proceeded to a joint trial on September 15, 2011.

During the Commonwealth’s opening statement to the jury, the prosecutor

commented on Moroz and Victim’s forensic interview as follows:

      You will hear from three witnesses from the Commonwealth here
      today. First, you will hear from a woman named Sherry Moroz
      who works at the Child Advocacy Center of Columbia County and
      hear how she conducted a forensic interview with [Victim on] July
      1 of 2010. You will hear what a forensic interview is, the situation
      in which that occurs, how she conducts those interviews, as well
      as her credentials and what she does to ensure those interviews
      are done correctly.

N.T. Trial, 9/15/11, at 16-17.

      At the conclusion of the opening statements, the prosecutor called Moroz

as his first witness. Appellant’s trial counsel immediately requested a sidebar

and objected to testimony from Moroz as irrelevant. Trial counsel noted that

Officer Strish could testify that he attended the forensic interview and brought

charges against Appellant based upon Victim’s statements to Moroz. The court

sustained trial counsel’s objection and the sidebar ended.

      The prosecutor asked the trial court to excuse Moroz, and he called

Officer Strish as his first witness. Officer Strish confirmed that he attended

Victim’s forensic interview.     When asked why Victim underwent a forensic

interview, Officer Strish testified that Victim’s mother (Appellant’s ex-wife)


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had informed him that Victim made sexual abuse allegations during a

counseling session approximately one month earlier. Officer Strish also stated

that Moroz conducted the interview, which was recorded on DVD.           Officer

Strish brought criminal charges against Appellant based upon Victim’s

interview statements.

      The prosecutor also presented Victim, who testified that Appellant

performed various sex acts on him. Victim claimed the abuse occurred on a

frequent basis when the family was living on Martz Street in Berwick, between

2004 and 2006. Victim said that the abuse stopped after the family moved

out of the Martz Street residence.

      At the conclusion of Victim’s testimony, Appellant testified in his own

defense. Appellant asserted that Victim reported being molested in 2006 by

another individual, William Houseknecht, who was adjudicated delinquent for

his conduct with Victim. Appellant also claimed that he underwent surgery in

2005, which left him unable to commit the sex acts alleged. Finally, Appellant

testified that Victim’s accusations against him occurred the day after a custody

hearing where Appellant sought to obtain greater visitation with Victim.

      After the jury commenced deliberations, they submitted the following

question to the trial court: “What is involved in the forensic interview? We

were told we would get more information and none given.” Id. at 123. The

court responded, “And you got what you are going to get.         That was the

evidence on that. And, basically, that is what Officer Strish testified to.” Id.

The jury also asked, “Request DVD interview of July 1st interview of [Victim].”

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The court responded, “That was not put into evidence. So that is the answer.

Okay? Thank you all.” Id.

        Ultimately, the jury convicted Appellant of two counts each of rape of a

child and aggravated indecent assault.1 On September 27, 2011, Appellant

filed motions for arrest of judgment, acquittal, and a new trial, which the trial

court denied.     On November 28, 2012, the court found Appellant to be a

sexually violent predator and sentenced him to an aggregate term of eight to

twenty years’ imprisonment. This Court affirmed the judgment of sentence

on July 19, 2013, and Appellant did not file a petition for allowance of appeal

with the Pennsylvania Supreme Court.             Commonwealth v. Sellers, 2240

MDA 2012 (Pa. Super. July 19, 2013) (unpublished mem.).

        Appellant timely filed a pro se PCRA petition on November 7, 2013,

raising claims of trial counsel’s ineffectiveness.      The PCRA court appointed

counsel, who filed an amended petition on April 10, 2014. Following multiple

continuances, the court conducted an evidentiary hearing on June 19, 2015.

        At the hearing, trial counsel testified that he was aware of Moroz prior

to trial, because the discovery materials included the transcript and DVD

recording of the forensic interview. Trial counsel believed, however, that the

Commonwealth would not call Moroz as a witness unless Victim’s trial

testimony was inconsistent with the statements he made during the interview.

Regarding the prosecutor’s reference to Moroz in the opening statement, trial

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1   18 Pa.C.S. §§ 3121(c) and 3125(a)(7), respectively.

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counsel testified that he was prepared to object to testimony from Moroz for

any purpose other than witness rehabilitation. Trial counsel also stated,

      I mean, you know you try not to object during opening statements
      unless it is just totally out to lunch on what is going on. Because
      I remember I have to open right after that, too. If I start making
      a bunch of objections, it turns out . . . they are going to make a
      bunch of objections.

N.T. PCRA Hr’g, 6/19/15, at 28.

      At the conclusion of the hearing, PCRA counsel asked the court to leave

the hearing record open.     Specifically, PCRA counsel wanted more time to

investigate certain witnesses who did not testify at trial. The court granted

PCRA counsel’s request and left the record open.

      On July 20, 2015, Appellant filed a motion requesting funds to hire a

private investigator, which the PCRA court granted. On September 28, 2017,

Appellant filed a petition to close the record for the PCRA hearing, explaining

that his private investigator did not provide a report until April 5, 2017. The

report led PCRA counsel to conclude that “no additional relevant testimony is

available to be offered on [Appellant’s] behalf.” Pet. to Close Record, 9/28/17,

at 2. The court granted Appellant’s petition and closed the record on October

26, 2017. That same day, the court entered an order and opinion denying

Appellant’s PCRA petition.

      Appellant timely filed a notice of appeal on November 20, 2017. On

January 2, 2018, new, privately retained counsel entered his appearance on

Appellant’s behalf.   Appellant subsequently filed a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The PCRA court

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filed a responsive opinion, concluding that trial counsel’s failure to object to

the references to Moroz and Victim’s forensic interview was not “material” to

Appellant’s conviction. Trial Ct. Op., 2/28/18, at 5.

       Appellant now raises three questions on appeal:

       1. Was [trial] counsel[’s] failure to object, request a
       curative/cautionary instruction and/or request a mistrial in
       response to the prosecutor’s opening remarks to the jury
       regarding Sherry Moroz’s forensic interview of the victim . . .
       ineffective and was there a reasonable probability that the
       outcome of the proceedings would have been different but for
       counsel’s inaction?

       2. Was [trial] counsel[’s] failure to object, request a more
       appropriate curative/cautionary instruction and/or request a
       mistrial to the trial court’s instruction to the jury’s request for
       information concerning the forensic interview and the jury’s
       request for the July 1, 2010 DVD forensic interview of [Victim]
       ineffective and was there a reasonable probability that the
       outcome of the proceedings would have been different but for
       counsel’s inaction?

       3. Was the decision by [trial] counsel to introduce evidence of
       William Houseknecht’s sexual abuse of [Victim] and his admission
       and adjudication for the abuse in Juvenile Court ineffective and
       was there a reasonable probability that the outcome of the
       proceedings would have been different but for counsel’s action?

Appellant’s Brief at 4.2


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2  Although Appellant presents three distinct questions on appeal, the
argument section of Appellant’s brief is not divided into three separate parts.
See Pa.R.A.P. 2119(a) (stating: “The argument shall be divided into as many
parts as there are questions to be argued; and shall have at the head of each
part . . . the particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent”). Nevertheless, Appellant’s
failure to comply with Rule 2119(a) does not preclude this Court from
reviewing the questions presented.

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      Appellant’s first two issues are related, and we address them together.

Appellant emphasizes that the Commonwealth’s opening statement to the jury

referred to Moroz and Victim’s forensic interview.     Id. at 11.    Appellant

complains that trial counsel did not object to this portion of the opening

statement.    Id.   Further, “The jury was not instructed to disregard the

Commonwealth’s remarks, which were not stricken from the record by the

trial court.” Id. at 12.

      Appellant acknowledges that the jury subsequently heard about the

forensic interview through Officer Strish’s testimony. Id. Appellant insists,

however, that the Commonwealth’s inability to provide testimony from Moroz

to explain the forensic interview process sidetracked the jury during

deliberations, as evidenced by the questions it submitted to the trial court.

Id.   Appellant maintains the court made the situation worse, because its

responses to the jury’s questions were “unartful and inappropriate.” Id.

      Appellant argues, “The jury is naturally going to believe forensic

evidence has scientific qualities that make the evidence more trustworthy.”

Id. at 13. A forensic interview, however, “is nothing more than a trained

interviewer making the young victim as comfortable as possible and

attempting to get the victim to speak.” Id. In light of the fact that Moroz did

not ultimately testify, Appellant concludes that trial counsel should have

objected and requested a mistrial based upon the references to Moroz and

forensic interviewing. Id. at 12, 14.




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      Our review the dismissal of a PCRA petition is limited to the examination

of “whether the PCRA court’s determination is supported by the record and

free of legal error.”   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014) (citation omitted).     “The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation

omitted). We review the PCRA court’s legal conclusions de novo. See Miller,

102 A.3d at 992. This Court “may affirm a decision of the [PCRA] court if

there is any basis on the record to support the [PCRA] court’s actions, even if

we rely on a different basis.” Commonwealth v. Moser, 999 A.2d 602, 606

n.5 (Pa. Super. 2010) (citation omitted).

      We    presume     that   the   petitioner’s   counsel   was    effective.

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish

a claim of ineffectiveness, a petitioner “must show, by a preponderance of the

evidence, ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted).         A

petitioner must establish (1) that the underlying claim has arguable merit; (2)

that counsel lacked a reasonable basis for his action or inaction; and (3) but

for the act or omission in question, the outcome of the proceedings would

have been different. Commonwealth v. Washington, 927 A.2d 586, 594

(Pa. 2007). “A claim of ineffectiveness may be denied by a showing that the

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petitioner’s evidence fails to meet any of these prongs.”       Id. (citations

omitted).

      “The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit[.] Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Smith, 167 A.3d 782, 788 (Pa. Super. 2017) (citations

and quotation marks omitted).

      Regarding opening statements,

      remarks in a prosecutor’s opening statement must be fair
      deductions from the evidence that he or she in good faith plans
      to introduce and not mere assertions designed to inflame the
      passions of the jury.      The prosecution is not required to
      conclusively prove all statements made during the opening
      argument. If the prosecutor has a good faith and reasonable basis
      to believe that a certain fact will be established, he or she may
      properly refer to it during the opening argument. Even if an
      opening argument is somehow improper, relief will be granted
      only where the unavoidable effect is to so prejudice the finders of
      fact as to render them incapable of objective judgment.

Commonwealth v. Brown, 711 A.2d 444, 456 (Pa. 1998) (citations omitted)

(emphasis added).

      Additionally, “[q]uestions from the jury and requests to be recharged

are common and most certainly do not create a presumption of jury

confusion.”   Commonwealth v. Weaver, 768 A.2d 331, 335 (Pa. Super.

2001) (citation omitted).

      Where a jury submits on its own motion a question to the court
      indicating confusion or a request for clarification, the court may

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       properly clarify the jury’s doubt or confusion. The feasibility and
       scope of any supplemental instructions to the jury is a matter
       within the discretion of the trial court.

Commonwealth v. Kidd, 380 A.2d 416, 419 (Pa. Super. 1977) (citations

omitted).

       Instantly, the prosecutor’s opening statement referenced Moroz and the

forensic interview, because the prosecutor planned to call Moroz as his first

witness. The prosecutor subsequently called Moroz, but trial counsel raised a

successful objection. Because the prosecutor’s opening statement amounted

to a commentary on evidence that he in good faith planned to introduce, the

opening statement was proper and an objection by trial counsel would have

been unwarranted at that point.3 See Brown, 711 A.2d at 456. As this issue

is meritless, we cannot deem trial counsel ineffective for failing to object to

the prosecutor’s opening statement. See Smith, 167 A.3d at 788.

       After the jury commenced deliberations, it submitted questions to the

trial court about the forensic interview. Although the court’s answers were

brief, they adequately reflected the state of the record following Officer

Strish’s testimony.        Therefore, the court properly resolved the jury’s

questions. See Kidd, 380 A.2d at 419. To the extent Appellant relies on the

jury’s questions to demonstrate some sort of anomaly necessitating a new

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3 The trial court also provided the following instruction to the jury: “Now,
statements by counsel do not constitute evidence.” N.T. Trial at 10. We can
presume the jury followed this instruction and did not treat the prosecutor’s
comments as substantive evidence. See Commonwealth v. Chmiel, 30
A.3d 1111, 1147 (Pa. 2011) (reiterating that a jury is presumed to have
followed the court’s instructions).

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trial, such questions do not create a presumption of jury confusion.         See

Weaver, 768 A.2d at 335. Again, we cannot deem trial counsel ineffective

for failing to object to the court’s accurate answers to the jury’s questions.

See Smith, 167 A.3d at 788.

      In his third issue, Appellant insists that trial counsel was ineffective for

introducing evidence that another individual, William Houseknecht, was

adjudicated delinquent for sexually abusing Victim. Significantly, Appellant

did not raise this issue in the PCRA court, and he did not include it in his Rule

1925(b) statement. See Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa.

2007) (stating that issues not raised in the PCRA petition cannot be considered

for the first time on appeal); Commonwealth v. Castillo, 888 A.2d 775, 780

(Pa. 2005) (holding that issues not raised in a Rule 1925(b) statement will be

deemed waived). As such, Appellant’s third issue is waived. Accordingly, we

affirm the order of the PCRA court, albeit on a different basis. See Moser,

999 A.2d at 606 n.5.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/20/2019


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