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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 STEPHEN FISCHERE,                        :
                                          :
                    Appellant.            :   No. 224 EDA 2018


             Appeal from the PCRA Order, December 14, 2017,
            in the Court of Common Pleas of Delaware County,
           Criminal Division at No(s): CP-23-CR-0002523-2009.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED MARCH 27, 2019

      Stephen Fischere appeals from the order denying his first petition for

relief pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A.

§§ 9541-9546. For the reasons that follow, we affirm.

      In 2009, Fischere severally beat his girlfriend’s young son. While the

boy was still barely breathing, he called 911. Police and emergency medical

technicians (EMT) arrived and attempted to revive the boy, but to no avail.

      Officers then questioned Fischere about the incident, and he told them

that the boy had fallen down the basement steps.

      The EMTs rushed the child to the hospital.     The nurses and treating

physicians could not save him. Medical personnel informed investigators that

Fischere’s “he-fell-down-the-stairs” story did not comport with the severity of
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the boy’s injuries, because a person so young would not likely die from such

a fall.

          Police returned to the scene of the crime and confronted Fischere with

this new information. He refused a second interview without an attorney.

          An autopsy revealed severe damage to the child’s internal organs and

vertebrae. Also, the medical examiner’s office concluded that many of the

bruises were one to four hours old.            Officers then arrested Fischere and

charged him with murder,1 aggravated assault,2 and endangering the welfare

of a child.3

          At the jury trial, the Office of the Medical Examiner of Delaware County,

the hospital personnel, and the boy’s pediatrician, all opined that the boy’s

injuries were consistent with physical abuse. The pediatrician also testified

that the child had consistently presented unexplained bruising in the months

leading up to his death. As a result, the doctor had him tested for a bruising

disorder, just a few days before he died. That test came back negative.

          The jury convicted Fischere of aggravated assault and endangering the

welfare of a child. However, it acquitted him as to all degrees of murder. The



____________________________________________


1   18 Pa.C.S.A. § 2502(a),(c).

2   18 Pa.C.S.A. § 2705(a)(1).

3   18 Pa.C.S.A. § 4304(a)(1).




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trial court sentenced Fischere to a prison term of 10 to 20 years. He filed an

appeal, and this Court affirmed.4

       Fischere filed a PCRA petition in March of 2014. The court of common

pleas denied relief in December of 2016. This appeal followed.

       Fischere identifies three issues in his appellate brief. They are:

          1.     Was Trial Counsel rendered ineffective . . . by making
                 promises to the jury in his opening statement that
                 Fischere would testify, but then ultimately not calling
                 Fischere to the stand?

          2.     Was Trial Counsel ineffective for continuing his line of
                 questioning, after specific warnings from the trial
                 judge that continuing such questioning would open
                 the door to Fischere’s post-arrest silence being
                 presented to the jury?

          3.     Was Trial Counsel ineffective in not properly and fully
                 advising Fischere of his Fifth Amendment rights,
                 specifically, by not informing Fischere that his earlier
                 line of questioning had opened the door to possible
                 harmful testimony, therefore rendering Fischere’s
                 waiver of his right to testify not knowing or intelligent?

Fischere’s Brief at 3 (emphasis added).

       We will consolidate Fischere’s first two appellate issues. The first issue

claims ineffectiveness, because trial counsel promised the jury Fischere would

testify, but that trial strategy later changed. The second issue challenges trial

counsel’s decision to question a witness about Fischere’s cooperation with the




____________________________________________


4 See Commonwealth v. Fischere, 70 A.3d 1270 (Pa. Super. 2013) (en
banc).

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police, despite counsel knowing it would open the door to other harmful

evidence if Fischere testified.

      In reviewing a PCRA Court’s ruling:

         our scope of review is limited to the findings of the PCRA
         court and the evidence on the record of the PCRA court’s
         hearing, viewed in the light most favorable to the prevailing
         party. Because most PCRA appeals involve questions of fact
         and law, we employ a mixed standard of review. We defer
         to the PCRA court’s factual findings and credibility
         determinations supported by the record. In contrast, we
         review the PCRA court’s legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

      To obtain relief under the PCRA, if trial counsel was ineffective, a

petitioner must establish, by a preponderance of the evidence, that counsel’s

ineffectiveness so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place. Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                “Generally, counsel’s

performance is presumed to be constitutionally adequate, and counsel will

only be deemed ineffective upon a sufficient showing by the petitioner.” Id.

This requires the petitioner to demonstrate that: (1) the underlying claim is

of arguable merit; (2) counsel had no reasonable strategic basis for his or her

action or inaction; and (3) counsel’s act or omission prejudiced the petitioner.

Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

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Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”        Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

      As to the second prong of this test, trial counsel’s strategic decisions

cannot be the subject of a finding of ineffectiveness, if the decision to follow

a particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).       Counsel’s approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).            A petitioner

asserting ineffectiveness based upon trial strategy must demonstrate that the

“alternatives not chosen offered a potential for success substantially greater

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.

1993). “We do not employ a hindsight analysis in comparing trial counsel’s

actions with other efforts counsel may have taken.” Stewart, 84 A.3d at 707.

A PCRA petitioner is not entitled to post-conviction relief simply because a

chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d 576,

582 (Pa. Super. 1995).

      As to the third prong of the ineffectiveness test, prejudice is established

“if there is a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different." Stewart, 84 A.3d at 707. “A

reasonable probability ‘is a probability sufficient to undermine confidence in




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the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899 A.2d 365, 370

(Pa. Super. 2006).

      Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead, if a claim fails under any necessary [prong] of the

ineffectiveness    test,   the   court   may    proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      We find no reversible error by the PCRA Court, because, as this Court

noted on Fischere’s direct appeal, evidence of Fischere’s pre-arrest silence

would have been admissible to impeach him had he taken the stand to testify

on his own behalf. See Commonwealth v. Fischere, 70 A.3d 1270, 1276

(Pa. Super. 2013) (en banc) (“[W]hen a criminal defendant waives his right

to remain silent and testifies at his own trial, neither the United States nor the

Pennsylvania      Constitution   prohibit   a   prosecutor     from   impeaching     a

defendant’s credibility by referring to his pre-arrest silence”) (internal

quotation marks omitted). Regardless of how trial counsel cross-examined

the detective, Fischere’s pre-arrest silence would have been fair game had he

waived his right to remain silent and testified at trial.




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      Likewise, Fischere cannot show he was prejudiced by counsel’s failing to

deliver on the promise that the jury would hear from Fischere at trial. The

jury heard Fischere’s version of events through the playing of Fischere’s

statement to police, and Fischere identified no additional information that

would have been offered had he testified.

      Further, Fischere acknowledged that counsel made “a great argument”

during his closing that, although he had intended to call Fischere as a witness,

he decided he did not have to because the Commonwealth did not prove its

case. N.T. PCRA Hearing, 9/14/17, at 50-51, 62-63. Fischere’s bald assertion

that the unfulfilled promise “undoubtedly affected the proceedings in an

irreparable manner,” Fischere’s brief at 12, is insufficient to establish his right

to relief. See, e.g., Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa.

2012).

      Additionally, the evidence against Fischere was overwhelming.            The

deceased boy’s pediatrician testified to a pattern of physical abuse for several

months leading up to his death. From this, the jury could have reasonably

inferred that Fischere had repeatedly beaten the child, but, this time, he went

too far.   And, on the night of the killing, the medical professionals at the

hospital immediately suspected foul play, rather than an accident as Fischere

had first reported to police. Finally, the county’s medical examiner conducted

an autopsy that produced evidence of excessive, blunt-force trauma,

inconsistent with a fall down a flight of stairs and failed CPR attempts.




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      We do not see how the opening statement by Fischere’s trial counsel

that Fischere would not “hide behind his right to remain silent” adds up to

much in the face of all that damning evidence. N.T., 7/19/10, at 45. Nor do

we see how Fischere telling his version of events would have disproved all of

the medical and scientific opinions against him. Even if the defense attorney

had not made that statement and even if Fischere testified, the jury would

have still very likely convicted him of an aggravated assault and endangering

the welfare of a child.

      Accordingly, we conclude that Fischere suffered no prejudice, even if

counsel was ineffective.     Thus, no relief is due on either of his first, two

appellate issues.

      We now turn to Fischere’s third and final claim of error – i.e., whether

counsel was “ineffective in not properly and fully advising [Fischere] of his

Fifth Amendment rights, specifically, by not informing [him] that his earlier

line of questioning had opened the door to possible harmful testimony,

therefore rendering [Fischere’s] waiver of his right to testify not knowing or

intelligent[.]” Fischere’s brief at 4.

      To demonstrate that there is arguable merit to his claim that counsel’s

poor advice rendered his waiver of his right to testify unintelligent, Fischere

must show either that counsel interfered with Fischere’s freedom to testify, or

that “counsel gave specific advice so unreasonable as to vitiate a knowing and

intelligent decision by the client not to testify in his own behalf.”

Commonwealth v. Todd, 820 A.2d 707, 711 (Pa. Super. 2003) (internal

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quotation marks omitted). To establish prejudice, Fischere must show that

“the result of the waiver proceeding would have been different absent

counsel’s ineffectiveness, not whether the outcome of the trial itself would

have    been   more      favorable   had   the   defendant   taken   the    stand.”

Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa. Super. 2015)

(emphasis omitted).

       Fischere has shown neither arguable merit nor prejudice.            Fischere

paradoxically claims that, based upon counsel’s promise to the jury during

opening statements to call him to testify, he “had no choice but to testify,

despite ultimately being convinced by trial counsel to remain silent.”

Fischere’s brief at 9.     Clearly Fischere did have a choice, as this is not a

situation in which counsel refused to call him as a witness.                    Cf.

Commonwealth v. Neal, 618 A.2d 438, 440 (Pa. Super. 1992) (affirming

grant of a new trial where counsel did not inform the defendant of his right to

testify).   The record shows that Fischere was advised of his rights, the

implications of a decision to take the stand was made plain to him on the

record, and he opted not to testify. See N.T. Trial, 7/26/10, at 11-16.

       There is no support for a finding that bad advice from counsel concerning

Fischere’s rights rendered his decision unknowing or unintelligent. He chose

to remain silent, because he could have been impeached by his pre-arrest

silence if he testified.   See Fischere’s brief at 17.   Fischere contends this

predicament arose because counsel opened the door to the impeachment

evidence when he chose to cross-examine the police detective. Id. However,

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as previously explained, if Fischere had testified, the Commonwealth would

have been able to impeach him with his pre-arrest silence, regardless of trial

counsel’s tactics. See Fischere, supra at 1276.

      As such, Fischere cannot establish that counsel’s advice to remain silent

was unreasonable. He also cannot show his decision in the waiver proceeding

would have been different had counsel given him accurate advice about the

implications of testifying. Fischere’s third issue therefore warrants no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/19




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