J-S03042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MERRICK STEVEN KIRT DOUGLAS

                            Appellant               No. 2131 EDA 2014


                   Appeal from the PCRA Order June 13, 2014
                In the Court of Common Pleas of Carbon County
              Criminal Division at No(s): CP-13-CR-0000289-2008


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 08, 2015

       Merrick Steven Kirt Douglas1 appeals the order entered June 13, 2014,

in the Court of Common Pleas of Carbon County, denying him relief on his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq. In this timely, first, PCRA2 petition and appeal, Douglas claims

the PCRA court erred in determining (1) trial counsel was ineffective for


____________________________________________


1
  Douglas’s name appears throughout the certified record with and without a
slash between Steven and Kirt. His name also appears as “Kirk” rather than
“Kirt”. When Douglas testified at a hearing on November 18, 2011, his
name was transcribed as “Merrick Steven Kirt Douglas”, one complete name
rather than as two names, as suggested by the use of a slash. We will refer
to him as Douglas.
2
 In a prior PCRA petition, Douglas was granted nunc pro tunc relief to file a
petition for allowance of appeal to the Pennsylvania Supreme Court.
Accordingly, this petition is considered his first PCRA petition.
J-S03042-15



failing to file the requisite notice of intent to present an alibi defense, and

(2) appellate counsel was ineffective for failing to file an adequate Pa.R.A.P.

1925(b) statement in his direct appeal.          After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm

on the basis of the sound reasoning of the PCRA court’s June 13, 2014,

memorandum opinion denying Douglas relief on his PCRA petition, and its

August 4, 2014, Pa.R.A.P. 1925(a) memorandum opinion that incorporates

the June 13, 2014 decision, in toto.

       Briefly, the charges against Douglas arose from an incident that took

place on July 10, 2007. After Douglas clocked out of work, he stopped to

talk to the owner’s 17-year-old daughter.3 Douglas’s time card showed he

clocked out at 3:37 p.m.            After a co-worker left, Douglas picked the

daughter up, carried her downstairs, molested her and attempted to rape

her. She escaped when the family dog started barking, leading Douglas to

believe the victim’s mother had returned home. From work, he went to his

mother’s place of employment, which was approximately 25 miles, or a 30

to 40 minute drive, away.

       At trial, Douglas’s mother testified he arrived at her work sometime

between 4:00 and 4:15 p.m. This testimony effectively supplied an alibi for

Douglas, given the time he clocked out of work and the uncontradicted time

____________________________________________


3
 The electrical contracting business Douglas worked for was located in the
owner’s home. To use the time clock, Douglas had to go inside the home.



                                           -2-
J-S03042-15



it took to drive from his work to his mother’s workplace. However, Douglas

did not file a notice of alibi defense prior to trial. Accordingly, the mother’s

testimony regarding what time Douglas arrived was stricken.        A jury then

acquitted Douglas of rape, but convicted him on a variety of other offenses

including attempted rape, indecent assault by forcible compulsion, and

unlawful contact with a minor. Douglas received an aggregate sentence of

six to twelve years’ incarceration.

       Douglas raised six issues in his direct appeal. These issues were: (1)

trial court erred in failing to grant a mistrial after a witness referred to

Douglas’s offer to take a polygraph test, (2) the Commonwealth violated

mandatory discovery rules by failing to turn over the initial police report, (3)

the trial court erred in allowing the Commonwealth to ask leading questions,

(4) the evidence was insufficient to support the verdict, (5) the verdict was

against the weight of the evidence, and (6) trial counsel was ineffective.

The Superior Court addressed the first issue, found issues 2-5 waived, and

determined issue 6 was premature. See Commonwealth v. Douglas, 30

A.3d 525 (Pa. Super 2011) (unpublished memorandum).4           Issues 2 and 3

were waived for failure to include the issues in the Pa.R.A.P. 1925(b)

statement, issue 4 was waived for failure to develop the argument, and

issue 5 was waived for failure to preserve the claim in a post-trial motion.

____________________________________________


4
 Our Supreme Court denied Douglas’s petition for allowance of appeal.
Commonwealth v. Douglas, 67 A.3d 793 (Pa. 2013)



                                           -3-
J-S03042-15



       As noted above, in this PCRA petition, Douglas claims his trial counsel

was ineffective for failing to preserve the possibility of an alibi defense, and

direct appeal counsel was ineffective for filing a legally insufficient Pa.R.A.P.

1925(a) statement.5

       Our standard of review of a trial court order granting or denying
       relief under the PCRA requires us to determine whether the
       decision of the PCRA court is supported by the evidence of
       record and is free of legal error. “The PCRA court's findings will
       not be disturbed unless there is no support for the findings in the
       certified record.”

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (citation

omitted).

       The Honorable Roger N. Nanovic, President Judge, has authored a

well-reasoned and comprehensive decision addressing Douglas’s claims. In

supplement of that decision, we write briefly to provide a succinct timeline

regarding the alibi defense.

       Our review of the record demonstrates that prior to trial, trial counsel

had no reasonable belief in the existence of an alibi defense.            In his

statement to the police, Douglas claimed he left the scene of the crime at

approximately 4:00 p.m. N.T. Trial, 12/8/2009, at 183.             Trial counsel

testified at the PCRA hearing that Douglas also told him he left at

____________________________________________


5
  Although only two issues were found waived pursuant to Rule 1925(b),
Douglas has included all waived issues under that argument. The PCRA
court has addressed all aspects of the claims in its comprehensive
memorandum opinion.



                                           -4-
J-S03042-15



approximately 4:00 p.m. N.T. PCRA Hearing, 8/13/2013, at 12. The victim

testified at trial that the incident was over and Douglas left the house at

approximately 4:00 p.m.           N.T. Trial, 12/8/2009, at 103.   Trial counsel

testified at the PCRA hearing that Douglas’s mother told his private

investigator that Douglas arrived at her workplace between 4:30 and 4:40

p.m. not between 4:00 and 4:15 p.m. as she testified at trial. 6 N.T. PCRA

Hearing, 8/13/2013, at 21.         The 4:30 to 4:40 p.m. arrival time comports

with Douglas leaving the crime scene at approximately 4:00 p.m. with a 40-

minute drive time.7 N.T. PCRA Hearing, 8/13/2013, at 12-13. Accordingly,

trial counsel had no reason to file a notice of alibi.

       In all other aspects, we rely upon the sound reasoning of the PCRA

court’s memorandum decision of June 13, 2014, as incorporated by the

PCRA court’s August 4, 2014, memorandum.

       Because the PCRA court’s order denying Douglas relief is supported by

the record and is free of legal error, we affirm the order.


____________________________________________


6
  The intent of calling Douglas’s mother to testify on his behalf was for her to
relate that when Douglas arrived he did not appear disheveled or bruised
and that he did not act in any way to indicate that anything extraordinary
had just occurred. After her testimony regarding Douglas’s time of arrival
was stricken, she provided the intended testimony.
7
   Douglas’s mother testified it was a good “40 minute drive” between
locations. N.T. Trial, 12/8/2009, at 241. At the PCRA hearing, trial counsel
testified he determined through Google that it should take between 25-35
minutes to drive the distance. N.T. PCRA Hearing, 8/13/2013, at 21-22.



                                           -5-
J-S03042-15



     Order affirmed. Parties are directed to attach a copy of the June 13,

2014, and August 4, 2014, decisions in the event of further proceedings.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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                      IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA

                                                       CRIMINAL DIVISION

                  COMMONWEALTH OF PENNSYLVANIA,

                                  v.                                      No. 2 8 9-CR-2008

                  MERRICK STEVEN KIRK DOUGLAS,
                                             Defendant

              Jean Engler, Esquire                                        Counsel for Commonwealth
              Assistant District Attorney

              Michael P. Gough, Esquire                                   Counsel for Defendant

                                                       MEMORANDUM OPINION

              Nanovic, P.J. - June 13, 2014

                        Before the court is Defendant's Post-Conviction Relief Act

                  ( PCRA)   1   petition wherein the primary issue raised is whether trial

              counsel was ineffective for not having discovered or presented at

              trial an alibi defense.                      For the reasons which follow, we hold

              that where counsel did not learn of facts supporting a possible
 !
 I1.          alibi defense until the witness testified at trial, at variance

              with earlier statements made by the witness and inconsistent with
 I
              information previously provided- .by the Defendant to both police

              and       defense             counsel,     counsel       will   have   rendered    effective

              assistance.

                                              PROCEDURAL AND FACTUAL BACKGROUND

                        The instant PCRA Petition filed by the Defendant, Merrick

              Douglas, on May 31, 2013, collaterally attacks his convictions for


              1    42 Pa.C.S.A.        §§   9541-46.

                                                             [FN-3-1'4]
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              sexually assaulting his boss's seventeen-year-old daughter.                                     The

              facts of this case occurred in 2007 when Defendant worked for an

              electrical contracting business that the owner operated out of his

              home in Albrightsville, Carbon County, Pennsylvania.                               On July 10,

              2007,     at the end of his shift, Defendant went to the owner's home

          , to punch a time clock.                  Defendant was accompanied by a co-worker,

              Nelson Soto, who was                 likewise finishing work for the day and

              intending to punch out.                Upon entering the home, both Defendant

              and Soto went upstairs and punched out.                        (N.T.   12/8/2009,        pp. 68-

              69;     230-31).         Defendant's time card documented the time as 3:37

              P.M.         (N.T.      12/8/2009,     p.    54;    N.T.     11/18/2011,      p.       41;    N.T.

              8/13/2013,         p.   25).

                      While Soto             left the home immediately after punching out,

              Defendant remained, talking to A.O., the owner's seventeen-year-

              old daughter, who was by herself in the home.                              Soto returned to

              the home approximately five minutes later to return keys to the

           work van which he had inadvertently taken with him.2                            On his return,

I          Soto observed the Defendant and                    A~_D.   for only a brief time - they

I          were talking with one another - and then left.                            When Soto left the
i.
          home the second time he was alone and sure Defendant was still in

          t.he home. (N.T. 12/8/2009, pp. 231-32).                           When asked, Soto did not

          know when Defendant exited the home.                           (N.T.   12/8/2009, p. 234).



          2 At trial Soto testified he returned within a minute or so to return the keys.
          (N.T. 12/8/2009, p. 232}. A.D. recalled the time lapse before Soto's return to
          be approximately five to ten minutes. (N.T. 12/8/2009, pp. 69, 129}.

                                                          [FN-3-14]
                                                              2

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         According           to A.O.,      when Soto          left the second         time,    she and

 Defendant         were      sitting       on    a    living    room couch       engaged      in    small

 talk.     Shortly          after this time,            A.O.    went into the kitchen to get

 a glass       of water.            Defendant          followed,       complimented       her on her

 appearance,          and started to lift up the bottom of her dress.                                A.O.

 testified      she pushed Defendant's                   hand away and asked him to leave.

 Defendant      commented          that they were alone in the home and should go

down to the basement;                he then placed one arm around her upper body,

picked     her        legs    up    with        the   other,     and    physically       carried      her

downstairs         against      her will.

        Once     in    the basement,             Defendant       pinned     A.D.   against         a pool

table     with        his     body,     lifted          up     her    dress,    pulled      down      her

underwear,         penetrated         her vagina         with his fingers,            and attempted

to penetrate          her vagina with his penis.                       During this entire time,

A.O.    testified           she was     screaming            for him to stop.            The assault

ended when A.D.'s dog barked, alerting Defendant to the possibility

that    A. D.' s      parents       were    home,       at    which    time    A.O.   escaped        from

Defendant's        grasp.       At this po i n t ,: -A·. D. ran upstairs to her bedroom

and locked the door behind her.                          Defendant followed.             When he was

unable to open the door, he left.

    · A.O.      told         her    parents           about    the assault         the    next      day,

wher e upon      they        immediately              contacted       the     Pennsylvania         State

Police.        Al though           the State Police came to A. D. 's                      home that

evening, and questioned what had happened, for reasons which are


                                                  [FN-3-14j
                                                      3
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              inexplicable,       it appears       that no written                record of this meeting             on

              July 11,    2007,    was made and/or            retained            by the police.

                   During     further investigation                   by the police on July                13,    2007,

              Defendant gave a written statement wherein he admitted that he was

              at the home and spoke               with A. D.,              but    denied that he sexually

              assaulted her.        In this statement,                 Defendant also told the police

              that he left the victim's              home at approximately                 4:00 P.M.,            "right

              behind Soto."         (N.T.       11/8/2009,         pp·.-     182-83).          After the pol ice

              completed their investigation, Defendant was charged with rape by

              forcible compulsion,          3   indecent assault                  by forcible compulsion, 4

              unlawful contact with a minor,5 indecent exposure,6 attempt~d rape

              by forcible compulsion,7 and various related inchoate offenses.

                   Paul Levy,       Esq.        ("Trial      Counsel")            represented Defendant in

          pretrial proceedings and at trial.                                In a meeting shortly after

          Defendant's preliminary hearing, Defendant told Trial Counsel that

          he was at the victim's                home on the day of the alleged                           assault and.

          left the home at 4: 00 P. M. e                     With the Commonwealth claiming the

          assault        occurred      between         3:30        P.M.          and    4:00     P.M,9      and    the



          J 18 Pa.C.S.A.  § 312l(a) (1).
          4 18 Pa.C.S.A.  § 3126(a) (2),
          5 18 Pa.C.S.A.  s 6318(a) (1).
          6 18 Pa.C.S.A,  § 3127(a),
          7 18 Pa.c.s.A.  § 901 (al.
          e At the PCRA hearing, Trial Counsel testified    Defendant told him he left the
          victim's home at 4:00 P.M.       (N.T. 8/13/2013, p. 12).     This agreed with the
          victim's timeline.     {N.T. 12/8/2009, p , 103),  Defendant also testified at an
          earlier hearing that after he clocked out he spoke briefly with the victim and
          that he left the victim's home after Mr. Soto. (N.T.     11/18/2011, pp. 41-42).
          9 see Affidavit of Probable    Cause attached to the criminal complaint filed on
          March 18, 2008.
                                                          [FN-3-14}
                                                               4


.......
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     information    provided     by Defendant,         Trial Counsel       did not foresee

     an alibi defense        and did not file a notice of alibi                   pursuant       to

     Pennsylvania    Rule of Criminal      Procedure 567.           Instead,       the defense

     position was not that Defendant was not there, but that the assault

     did not occur.

          To   support   this position,             Defendant    advised       Trial     Counsel

     that his mother     was a potential            witness   because     he     drove    to her

 workplace         immediately    after     the __ ~ssault        was    alleged         to   have

 occurred.         An investigator       employed      by Trial Counsel           interviewed·

 Defendant's        mother     shortly    before       trial.       At   this       interview,

 Pefendant's        mother    told the investigator             that her son arrived             at

 her workplace        between    4:30    P.M.       and 4:40 P.M.        (N.T.      8/13/2013,

 pp.    20-21) .     With her workplace a thirty to forty minute drive

 from the crime scene,10           her statement reinforced the information

 Defendant provided to Trial Counsel, that he left the victim's

home at 4: 00 P. M. and drove directly from that location to his

mother's place of employment.                   Defendant's mother also told the

investigator that when she saw her son, there was nothing about

his appearance, his clothing or physical condition, or his demeanor

that indicated he had been involved in an assault.                             Based on this

interview, Trial Counsel planned to call Defendant's mother as a




10  Defendant's   mother testified     the distance  was "a good 40 minutes"   drive.
 (N.T. 12/8/2009,    p. 241).      Attorney   Levy recalled the driving  time to be
approximately    25 to 35 minutes     based upon a Google search   he had performed.
(N.T. 8/13/2013,    pp. 21-22).

                                         [FN-3-14]
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       witness to testify to Defendant's demeanor and condition within an

       hour.after the alleged assault occurred.

            A two-day jury trial began on December 8, 2009.                At trial,

       the Commonwealth relied primarily on the testimony of A.D. to prove

       its case.    She gave a detailed account of the assault as describe~

       above.     As presented by the Commonwealth, with Defendant clocking

       out at 3:37 P.M. and leaving the victim's home at approximately

       4:00 P.M., Defendant had a window_~! opportunity of approximately

       twenty-three minutes during which the assault occurred.

           After the Commonwealth rested, Defendant offered his mother

      as his sole witness.     Defendant's mother testified to a time frame

      different from that which she had told the investigator.                      She

      testified that on the day of the assault her son arrived at her

      workplace not between 4: 30 and 4: 40 P. M.,         but between 4: 00 and

      4:15 P.M., and certainly no later than 4:30 P.M.            (N.T. 12/8/2009,

      p. 241). This testimony established a possible alibi for Defendant

      in that if he arrived at his mother's workplace at 4:00 P.M., or

      shortly thereafter, given the time needed to travel between the

      victim's home and his mother's workplace, he would have been on

      the road at the time the Commonwealth claimed the assault occurred.

      The Commonwealth objeGted to this testimony as Defendant had not

      filed a notice of alibi.       The objection was sustained and the

      testimony    stricken.     Defendant's      mother   then    testified,        as




                                     [FN-3-14}
                                          6
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I
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                                         .
     planned, about her son's demeanor and condition on the day of the

     assault.

          Defendant did not testify in this case.                Prior to resting,

     Trial Counsel met with Defendant to discuss whether Defendant

     should testify.    At this meeting, Trial Counsel advised Defendant

     not to testify for two reasons.              First, Trial Counsel advised

     Defendant that if he testified, the Commonwealth would impeach him

     with his prior conviction for forgery.11            Second, Trial Counsel

 advised Defendant that he did not believe the jury would find

 Defendant's testimony         credible.          According     to Trial     Counsel,

 Defendant planned on testifying that A.O. fabricated her testimony

 about the assault because Defendant declined her sexual advances.

 Based on this advice, Defendant decided not to testify and the

 defense rested.         Defendant was       found guilty by the jury the

 following day of all charges, except rape by forcible compulsion.

         Following     his   convictions,         but   prior     to    sentencing,

 Defendant's parents         hired Mark      Schaffer,    Esquire      and     Kenneth

Young, Esquire         ( collectively "Appel late Counsel") to represent

Defendant at sentencing and for the purpose of taking a direct

appeal.      With Appellate Coun~el representing Defendant, Defendant

was sentenced to an aggregate term of imprisonment in a                           state




11                                                                 s motion in
      Prior to the taking of evidence, we granted the Conunonwealth'
limine to allow the Commonwealth to present evidence of Defendant's conviction
for forgery, a felony of the third degree, if he testified,         (N.T. 12/8/2009,
p. 4).

                                    [ FN-3-14 J
                                         7
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 correctional             facility           of not l~ss than six nor more                     than    twelve

 years.

         On April             9,    2010,    Appellate     Counsel appealed             the judgment         of

 sentence       to       the        Pennsylvania        Superior      Court.       On        this     appeal,

 Appellate         Counsel           raised six claims:            (1) whether the Commonwealth

 failed       to     provide            the     defense       with    requested          and     mandatory

discovery,           (2)           whether     the    Trial      Court    erred    in     allowing          the

Commonwealth             to ask A. D.          leading _gu_estions        on direct examination,

 (3)   whether       the Trial Court erred in denying                          Defendant's            request

for a        mistrial              after     the     investigating       trooper        testified          that

Defendant          had        volunteered          to take a polygraph            test,        {4)    whether

the evidence          was insufficient                 to sustain Defendant's                convictions,

{5)    whether       the verdict               was against        the weight       of    the evidence,·

and    (6)     whether              Trial    Counsel     was     ineffective       both        before       and

during trial.

       On     May        3,        2011,     the     Superior     Court     affirmed          Defendant's

judgment       of sentence.                  In doing so,        the Court      addressed            only the

merits       of the claim related                    to the polygraph          test; the remaining

claims       were     deemed           either        waived      or   premature.         It     held       that

Defendant       waived              the claims        of discovery        violations          and     leading

questions       because              Defendant        did not     include      them     in     his     court-

ordered       Pa.R.A.P.              1925{b)       statement     of matters       complained           of on

appeal.        Next,           it    held     that    Defendant       waived    the weight            of   the

evidence      claim           because       he did not properly            preserve       the issue by


                                                     [FN-3-14}
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                                                                              Circulated 03/18/2015 11:22 AM




 making either an oral or post-sentence                 motion with the trial court.

 It also held that he waived the sufficiency                       of the evidence          claim

 because     he did not properly           brief the issue.          Finally,       the Court

 did not address        the claim for ineffectiveness                of counsel       because

 it was premature.          Defendant       did not appeal the Superior               Court's

 decision.

      On August     2,     2011, Defendant          filed his first PCRA petition,

 claiming    that   both    Tri~l    Counsel        and Appellate         Counsel    rendered

 ineffective    assistance         of counsel.        Defendant      raised     four claims

in   this    petition:       (1)    that    Trial     Counsel      failed    to     raise    and

preserve     an alibi defense,          (2)       that Appellate      Counsel       failed    to

preserve      several      appellate          issues,     ( 3)     that     Trial     Counsel

ineffectively advised Defendant not to                           testify, and       (4)     that

Appellate      Counsel failed to petition the Pennsylvania Supreme

Court for allowance of appeal from the Superior Court's May 3,

2011 decision.

       In an opinion dated August 17,                    2012,      we found Appellate

Counsel rendered ineffective assistance of counsel by failing to

seek review of the Superior Court's decision.                          Consequently, we

reinstated Defendant's right to file a petition for allowance of

appeal with the Pennsylvania Supreme Court nunc pro tune.                              At the

same time, we dismissed Defendant's first, second, and third claims

without prejudice, holding Defendan~ could raise those issues in

a subsequent PCRA petition if needed.


                                       [FN-3-14]
                                              9

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         Defendant filed his petitio~ for allowance of appeal with the

 Supreme Court on September             5,      2012.     On May 14,       2013,        the Court

 denied     this petition.        Subsequently,           on May 31,       2013,        Defendant

 filed his Second Amended           PCRA petition now before                us.    12     In this

 petition,     Defendant       raises     the      remaining     three   issues         from his

 first      PCRA    petition      which       we     previously      dismissed            without

 prejudice.    13


         On August    13, 2013,     we held ~_hearing            to allow Defendant              to

 present     evidence    in support          of his petition.       14     Following           this

 hearing,     and    after      receiving        briefs     on    behalf     of         both    the

Commonwealth        and Defendant, we are now ready to address the merits

of Defendant's        claims.     We do so in the order advanced.



                                        DISCUSSION


12   Because Defendant filed this petition within a year of the date the Supreme
 Court denied his appeal, we have jurisdiction over his petition. We have no
 jurisdiction over an untimely PCRA petition. Commonwealth v. Frey, 41 A.3d
 605, 610 (Pa. 2012). To be timely, the general rule, with three exceptions, is
 that the petition must be filed within one year from the date the judgment of
 sentence becomes final. 42 Pa.C.S.A. § 9545(b) (1). "[A) judgment becomes final
 at the conclusion of direct review, including discretionary review in the
 Supreme Court of the United States and the Supreme Court of Pennsylvania, or at
 the expiration of time for seeking the review." § 9545{b) (3), When appellate
 rights are reinstated nune pro tune, a judgment becomes final when appellate
rights on the reinstated appeal are exhausted. See Commorn-Jealth v. Karanicolas,
836 A.2d 9401 944-45      (Pa.Super. 2003).   Here, we reinstated Defendant's
appellate rights nune pro tune and he exhausted those rights on May 14, 2013,
when the Pennsylvania Supreme Court denied his petition for allowance of appeal.
Defendant then timely filed this petition seventeen days later on May 31 2013.            1

13   Defendant also raised the issue that Trial Counsel rendered ineffective
assistance by failing to object to the admission of photographs.        Defendant
withdrew this issue at the conclusion of the August 13, 20131 hearing. (N.T.
8/13/2013, p. 71).
l4    Based on an agreement of the parties, we also incorporated as part of the
record for this petition the transcript from the hearing held on November 18,
2011, for Defendant's first PCRA petition. (N.T. 8/13/2013, p. 6).


                                        [FN-3-14)
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  1.   WHETHER     APPELLATE COUNSEL          RENDERED INEFFECTIVE   ASSISTANCE                               OF
                  COUNSEL BY WAIVING          SEVERAL APPELLATE   ISSUES

         Defendant       first claims      that Appellate                  Counsel        was ineffective

 by    failing     to preserve        on   direct      appeal              all     but    two     issues      for

 appellate       review.     Appellate      Counsel               waived    four of the six issues

 appealed     from      by not    including      two issues                 in   Defendant's           1925(b)

 statement,       not    properly     briefing      an issue,                and    not preserving             an

 issue in either         an oral or post-sentence                    motion.         Because       Appellate
                                                       .... _..
Counsel      failed      to preserve        these      issues,               Defendant          asks     us    to

 reinstate his direct appeal nunc pro tune.

        Defendant argues that he does not need to establish the three

elements      for ineffective          assistance             of counsel as articulated                        in

Commonwealth       v. Pierce, 527 A.2d 973 (Pa. 1987), to have his direct

appeal reinstated.            He claims Appellate Counsel's                              waiver of these

four claims was per se ineffective assistance                                    of counsel.

       Generally,        to determine       if counsel has rendered                             ineffective

assistance, we apply a three-part test based on our Supreme Court's

interpretation          of Strickland      v. Washington,                   466 U.S. 668 (1984) in

Pierce.      In Strickland,          the United States Supreme Court held that

to establish         a claim        of ineffective                 assistance            of counsel           the

defendant     must show that counsel's performance                                  was deficient and

that     this      deficient          performance                  prejudiced             the       defense.

Strickland,       466 U.S.       at 687.    Our Supreme Court divided this test

into a three-part          test under which the defendant                                must establish:

( 1) that the underlying             legal claim has arguable                            merit,     (2) that

                                           [FN-3-14)
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 counsel's       actions     lacked       an objective            reasonable             basis,       and     ( 3)

 that he was        prejudiced       by counsel's            acts          or omissions.               Pierce,

 527 A.2d at 975.          A failure to establish any of these three elements

 will     defeat      a     claim    of     ineffective               assistance              of     counsel.

 Commonwealth       v. Walker,        36 A.3d 1, 7           (Pa.         2011).

         However,     in    some     circumstances,              counsel's              conduct       will     be

deemed to be per se ineffective.                         Commonwealth              v.    Allen,       48 A.3d

 1283, 1286        (Pa.Super.       2012).       One-~uch             circumstance             occurs       when

counsel     fails to perfect a direct appeal because                                counsel          fails to

follow procedural            rules. Commonwealth                 v.    Bennett,          930 A.2d           1264,

1273     (Pa.   2007).      When counsel waives appellate                          issues because of

a failure to follow procedural                   rules, the first two parts of the

Pierce test, arguable merit and unreasonableness,                                   are established.

Commonwealth         v.     Johnson,       889     A.2d          620,        622        n.3        (Pa.Super.

2005) (holding       that     the first two prongs                    of    the     Pierce         test     "are

clearly     met     where     counsel      fails       to    follow          procedural             rules     to

ensure     requested         appellate       review          of       a     criminal           defendant's

claims.") .

        As for the         final element       of prejudice,                 when        the conduct          of

counsel     results        in the waiver       of all            appellate         issues          - causing

the defendant        to be deprived           of his         right          to a direct             appeal      -

prejudice       is presumed.        Commonwealth            v.    Halley,         870 A.2d          795, 800

(Pa.    2005).       This     presumption         of     prejudice            is        founded        on    our

courts'    interpretation           of the United States Supreme Court decision


                                            [ FN-3-14]
                                                 12
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 in United States         v. Cronic, 466 O~S.        648 (1984), which our courts

 have relied      upon    to find that the "actual or constructive                    denial

 of the assistance            of counsel   falls     within   a    narrow    category       of

 circumstances           in     which   prejudice       is        legally      presumed."

 Commonwealth     v.     Lantzy, 736 A.2d 564,        571 (Pa. 1999).          Our courts

 find that      when      counsel fails to perfect            a     direct     appeal,        a

 defendant   is    constructively denied the assistance of counsel.

 Commonwealth v. Bennett, 930 A.2d }2.64,                1273 (Pa. 2007) ("we have

 repeatedly indicated that the failure to file a requested direct

appeal or a 1925(b) statement in support thereof is the functional

equivalent of having no counsel at all").                 Therefore, when counsel

waives all appellate issues, entirely depriving a defendant of his

right to a        direct       appeal, counsel is        said to render per                 se

ineffective assistance of counsel.                  Halley, 870 A.2d at 800.

     However, this per se rule is not applicable when counsel's

errors do not entirely deprive a defendant of his right to a direct

appeal because counsel only waived some - but not all - of the

issues presented.             Commonwealth v. Grosella, 902 A.2d 1290, 1293-

94 (Pa.Super. 2006).            When this occurs, our courts do not deem the

defendant to have been constructively deprived of counsel. Halley,

870 A.2d at 801.         Thus, in these circumstances, the presumption of

prejudice dissipates. Grosella, 902 A.2d at 1293.                      When only some

of the appellate issues are waived, we must determine if the waiver




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      of appellate           issues prejudiced                 the defendant.                   Grosella,          902 A.2d

      at 1294.

              Here,      Appellate         Counsel            raised          six     issues         on appeal.            The

      Superior        Court      held    that four of those                         issues      were        waived.        The

      remaining          two      were         either          addressed              or       deemed           premature ..

      Therefore,        because      Appellate            Counsel's            waiver        of these           issues     did

      not entirely           deprive       Defendant            of his         right         to a direct             appeal,

     prejudice          is not presumed.                 Consequently,                counsel         was not per se

     ineffective         and we must            determine            if Defendant              was prejudiced._

             "To     demonstrate           prejudice,               the       [defendant)            must        show     that

      \there       is    a     reasonable             probability              that,           but       for     counsel1s

     unprofessional            errors,          the      result          of    the     proceeding               would    have

     been    different.'"               Commonwealth                v.     King,       57    A.3d        607,     613     (Pa.

     2012)       {quoting        Strickland,              466       O.S.       at      694).             "A     reasonable

     probability         is a probability                sufficient            to undermine confidence                       in

     the outcome of the proceeding."                               Id.        Here,     such probability                 does·

     not     exist       because         the     issues             Appellate           Counsel             waived       were
i.
     meritless.

             The     first     claim      waived          was       that       the Commonweal th                  violated

     mandatory       discovery          rules     by     failing           to turn          over     a police         report

     documenting         their    July     11,        2007,     visit         to A.D.'s            home.        This claim

     is meritless            since      no evidence                was     presented           to     establish          that

     such    a     report      exists.           (N.T.          8/13/2013,             p.      44-45).            Further,




                                                         [FN-3-14J
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counsel acknowledged              at the PCRA hearing that this claim was being

withdrawn.           (N.T.   8/13/2013,     pp.    68-69).

         The    second       waived      appellate      claim     was   that    we    erred      in

allowing       the Commonwealth           to ask leading questions             of A.O.      Trial

Counsel        only    objected     once    on the basis of a             leading    question.

The question          was "[o]kay.        Did his penis penetrate           your genitals?"

 (N.T.    12/8/2009,         p.   76).      This . issue     is   meritless      because       the

question        is    not    leading:      it     does ~ot      suggest    an answer.          See

Commonwealth v.              Johnson, 541 A.2d 332,             336-37 (Pa.Super.           1988)

(holding that a question that does not suggest an answer is not a

leading question because a                   leading question "puts the desired

answer in the mouth of the witness").                           Further, even if it was

error to permit this question, the error was ha rml e ss in that

whether or not Defendant's penis penetrated A. D. 's vagina was

relevant only to the rape charge for which Defendant was acquitted.

         The third waived appellate claim was that the evidence was

insufficient to support the convictions.                            We     find this claim

meritless because A.D.'s testimony was sufficient to establish all

elements       on      all    convicted     crimes beyond           a     reasonable      doubt.

Defendant has not shown otherwise.

         Finally, the last waived appellate claim was that the verdict

was against the weight of the evidence.                             Like with the other

claims, this claim lacks merit.                    It does not shock our conscience

that the jury relied on A.D.'s detailed testimony of the assault


                                            [FN-3-14}
                                                15

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                                                                                        Circulated 03/18/2015 11:22 AM



  to find Defendant               guilty      on all'convicted          crimes.        Commonwealth         v.

  Boyd,    73     A.3d    1269,        1274-75     (Pa.Super.        2013)     (en    bane).

          Because        we find the issues Appellate                   Counsel waived on appeal

 to be without merit, Defendant's                           first claim of error is denied.


        2. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
      COUNSEL BY FAILING TO INVESTIGATE AND PRESENT AN ALIBI DEFENSE

          Next,     Defendant claims Trial                      Counsel        rendered ineffective

 assistance         by    failing to present_?~ alibi defense.                             To determine

 if counsel         was ineffective for                     failing to pursue           a defense, we

 apply the three-part Pierce test discussed above.                                    See Commonwealth

 v.    Spotz,      896 A.2d 1191,              1217-1219        {Pa. 2006).           As to the first

part of this             test,        there is no dispute that failing to interview

an alibi witness,                     to file notice of an alibi defense, and to

present an alibi defense                      when one exists,            are claims of arguable

merit.       See Conunonwealth                v. Stewart, 84 A.3d              701°, 712       (Pa.Super.

2013);     Commonwealth                v.    Washington,       361    A.2d     670,     674    (Pa.Super.

1976).          Instead,         it    is the second and third parts                      of the test,

namely whether Trial Counsel had a reasonable basis for his actions

and whether         these        actions caused prejudice,                   which are in dispute.

         In answering whether                    counsel's      actions        lacked     an   objective

reasonable        basis, we must determine "whether no competent counsel

would     have      chosen            that    action    or      inaction,       or,     [whether}        the

alternative{)        not chosen,             offered a significantly greater potential

chance     of success.u                 Stewart,      84 A.3d        at 707.         When determining


                                                   [FN-3-14}
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  whether           a reasonable          basis     for 2ounsel's                actions       exists,         ~e must

  make       "all      reasonable         efforts      to avoid            the     distorting            effects          of

  hindsight,"              while     also         avoiding       "post          hoc      rationalization                  of

  counsel's           conduct."           Commonwealth          v.     Sattazahn,            952    A.2d      640,       656

   (Pa.       2008)        (citations        omitted).               We     must         evaluate            counsel's·

  performance            based     on counsel's         perspective              at the       time     the conduct

  occurred.            Commonwealth          v.    Carson,       913      A.2d       220,     274     (Pa.     2006).

            Trial      Counsel      testified         that      before       trial          he did not         believe

  his      client       had a viable         alibi     defense.              (N.T.          8/13/2013,         p.     20).

  This      belief       was     based     on his discussions                   with     Defendant            in     which

  Defendant           told     Trial Counsel          that he left               the     scene       of the crime

 at       4 : 00    P. M. is     With     this      knowledge,            and     with        the    Commonweal th

 claiming           the assault          was over by 4:00 P.M.,                      Trial         Counsel         had   no

 reason        to believe          that    Defendant         was not present                  when the         assault

 occurred.




   15    Defendant- gave a statement to police that is ambiguous on its face as to
  when Defendant left the victim's       home.   It reads in part as follows:    "[o]n  July
   10th reported to the office got to the office about 3:37 went inside (A.D.J
  opened the door entered the home with another co worker (sic) went upstairs and
  punched-out came back down and wash my hands because it had glue on it said a
· few words to (A, D. J then when Nelson left I left right behind him about 4 pm
  received a phone call from the office."          Commonwealth Exhibit No. 2.      The lack
  of punctuation in this statement         makes it unclear whether Defendant left at
  4:00 P.M. or received a phone call at 4:00 P.M.        Trial Counsel read the statement
  to be that Defendant left the victim's home at 4:00 P.M.            (N.T. 8/13/2013, pp.
  12, 25),     This interpretation   was supported by his conversations with Defendant.
   (N.T.   8/13/2013, p , 12).
      It was also reinforced by what Defendant's      mother told a private investigator
  employed by Trial Counsel.          When interviewed     shortly before trial by this
  investigator,     Defendant's  mother told the investigator     that her son arrived at
  her workplace sometime between 4:30 P.M. and 4:40 P.M. (N.T. 8/13/2013, p. 21).
  This time fit well with what Defendant had told Trial Counsel about when he
  left the victim's      home.

                                                    [FN-3-14]
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              That    Trial    Counsel        accepted        what     Defendant          told     him about       his

     whereabouts          and when       he    left    the       victim's          home,         and    that     Trial

     Counsel     did not prepare an alibi defense,                                 was reasonable.                 Our

     Supreme         Court     has     routinely         held         that        counsel         does     not     act

     unreasonably         by not investigating                 possible defenses,                  or mitigating·

     evidence,        of which he is unaware,                    has      no reason          to suspect,           and

     which is not             suggested        by what          Defendant tells                  counsel.          See

    Commonweal th v. Miller,                  987 A. 2d 638,              654-5 5 (Pa.           2009)     ( holding

    counsel had reasonable basis not to investigate a witness's                                                 mental

    condition when defendant,                       as the           witness's        cell mate             for    two

    months,          never     told     counsel         about          the        witness's            contjition};

    Commonwealth v.            Brown,     872 A.2d            1139,       1149-50         (Pa.    2005) (holding

    counsel      had       reasonable          basis      not        to    investigate              pre-existing

    evidence         of   Defendant's          mental         health         to    support          self-defense

    theory when defendant               never told            counsel         about his mental health

    history);         Commonwealth             v.     Bracey,          795        A. 2d      935,        944      (Pa.

    2001} (holding           counsel     had reasonable                   basis      to     not        investigate

    mitigating         evidence       of abuse         when defendant                never told                counsel

    about abuse).

           This rule is particularly                     relevant under the                      facts      of this

    case   where,         if the Defendant             was       not      present         when         the assault

    occurred at the location claimed,                         it would be natural                   and expected

    that he would tell his counsel this crucial fact.                                             Excluding        the

    victim,     Defendant is the only other                     person who truly knows when he


                                                    [FN-3-14]
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      left the victim's    home on July 1a,      2007.    Under the facts known to

      him,    Trial Counsel acted reasonably in relying on                 Defendant's

  recall of when he left the victim's home and centering the defense

  that no assault occurred on the lack of physical evidence, brief

  time frame, and perceived shoddy police investigation.16                              See

  Commonwealth v.         Rivers, 786   A.2d     923,    930   (Pa.   2001)     (quoting

  Commonwealth v. Laird, 726 A.2d 346,             357   (Pa. 1999)    ("Counsel will

 not be deemed ineffective for pu rsui nq a particular strategy as

 long as the course chosen was reasonable.")).

             Nor has Defendant met the third prong of the Pierce test on

 this issue.         The alibi evidence which Defendant contends was not



 16
     This evidence included the following: that notwithstanding the struggle
  described by the victim, neither party had any torn clothing; there was no
  evidence of any property damage in the home; Defendant exhibited no cuts,
 bruises or scratches; and when Defendant's mother observed him within 25 to 40
 minutes after the assault, there was nothing untoward about his appearance or
 demeanor. Similarly, the injuries claimed by the victim were relatively minor,
 some faint scuff marks on her knees and elbows.
    The highly circumscribed time for the assault to occur and the chance return
 of Soto were also to Defendant's advantage. Soto's return to the victim's home
 was unexpected and could not have been anticipated by the Defendant, yet when
 Soto returned he observed the Defendant and the victim engaged in friendly
 conversation, nothing_indicative of a brewing assault. Given these observations
 by Soto, the time for the assault to occur was abridged even further, making it
 arguably more questionable whether everything the victim described after Soto
 left the second time could have occurred within this short time span: continued
 talking between the victim and Defendant inunediatelyafter Soto left; the victim
struggling and Defendant carrying her to the basement; the attack in the
basement, removal of the victim's underwear and the attempt at intercourse; and
the victim's escape and flight upstairs, where the victim testified Defendant
remained momentarily outside her bedroom door before, after being unsuccessful
in gaining access to her bedroom, he decided to leave.
   Added to these weaknesses in the Conunonwealth's case were numerous apparent
deficiencies in the pol ice investigati.on as pointed out by the defense:      no
record kept of the July 11, 2007 response to the victim's home, no attempt to
examine the victim's or Defendant's clothing for evidence of the assault, no
attempt to examine the victim's home or the pool table for evidence of the
assault, including possible pubic hair or semen, and no DNA evidence or other
forensic tests taken.

                                     [FN-3-14]
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 presented        was contradictory              in some respects             to other        evidence         in

 the case, in other             respects         did not disprove             the occurrence           of an

 assault,     and     overall     did not create                 a reasonable        probability        that

 the outcome         of the      trial         would     have      been     different         for    several

 reasons.

         First,      the   variances          in the     different          times    Defendant        sought

 to present         leaves     open      the     possibility          that     Defendant        committed

 the assault        and still arrived             at h i s mother's          workplace by no later

 than 4: 30 P. M.,            one of the times given by Defendant's mother.

 Accepting        the Commonwealth's             evidence that the assault lasted less

 than twenty-three            minutes         (i.e.,     the difference             between when Soto

 left    the second          time and         4: 00    P. M.),      there     is     still     sufficient

time for Defendant to have assaulted A.D.                                 using the victim's            time

estimates,         left the home by 4:00                P.M.,      and arrived at his mother's

workplace         rio later     than 4:30 P.M.,              a twenty-five            to forty minute

drive.

        Alternatively,           if      we     accept       the      earliest         time     at    which

Defendant's         mother     claims he arrived at her place of employment,

4:00 P.M.,        this would     conflict with the time stamped on Defendant's

time card11 and directly                 contradict          Defendant's            own statements         to

police and his counsel that he left the victim1s                                    home at 4:00        P.M.

(N.T.    12/8/2009,        pp. 182-183).               Such time would further                contradict


11 Assuming  a twenty-five to forty minute drive to his mother's place of
employment, Defendant could not have been at the victim's home at 3:37 P.M. and
still arrived at his mother's workplace by 4:00 P.M.

                                                {FN-3-14]
                                                     20
                                                                                          Circulated 03/18/2015 11:22 AM




     the testimony of Nelson Soto, Def~ndant's co-worker,                                 who testified

     that he saw Defendant                talking          with A.O.       as he left         that day at

     3:37     P.M.,        that   Defendant             was    still      there   when     he     returned

     approximately          five minutes          later, and that Defendant               did not leave

     with    him    at     that    time.          Id.     at    231.      To   have   presented         this.

     testimony to the jury, that Defendant arrived at his mother's place

    of employment           by 4:00 P.M.,           would have devastated             and undermined

    the entire timeline of the defense_Ji.Dd its argument                             that Defendant

    was present, but there was no assault.                             Given the strength of this

    other evidence,           it appears      unlikely that if counsel had been aware

    beforehand        of what      Defendant's           mother        intended   to testify          to and

    if given       the choice,       counsel            would have proceeded             with    an    alibi

    defense.       (N.T.    8/13/2013,       p.     48).

            On   this       issue,       Defendant            was   not    deprived      of     effective

    assistance        of counsel.         Accordingly,              the claim is denied.


       3.    WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE                                    OF
                   COUNSEL        BY ADVISING           DEFENDANT NOT TO TESTIFY

            Finally,       Defendant      claims Trial Counsel                 was ineffective             for

    advising     him not to testify.

         The decision of whether or npt to testify on one's own
         behalf is ultimately to be made by the defendant after
         full consultation   with counsel. In order to sustain a
         claim that counsel was ineffective for failing to advise
         the appellant of his rights in this regard, the appellant
         must demonstrate either tha~ counsel interfered with his
         right to testify, or that counsel gave specific advice
         so unreasonable as to vitiate a knowing and intelligent
         decision to testify on his own behalf.


                                                  {FN-3-14}
                                                      21

                                                        Jo
j
                                                                                             Circulated 03/18/2015 11:22 AM



 Commonwealth          v. Michuad, 70 A.3d                862, 869 (Pa.Super.                2013)        (quoting

 Commonwealth v.              Nieves,       746       A.2d    1102,      1104       (Pa.     2000)).             Like

 with other ineffective assistance                           of counsel claims,               the defendant

 must also demonstrate                 that his failure to testify caused prejudice.

 Commonwealth v. Alderman, 811 A.2d                            592, 596 (Pa.Super. 2002}.

         Defendant has failed to establish that Trial Counsel either

 interfered        with his right to testify                       or that Trial                 Counsel gave

 unreasonable advice.                  First,        the e~idence established                      that,        after

consulting         with       Trial       Counsel,          Defendant         alone        decided          not    to

testify.       (N.T.        11/18/2011,         pp.    47-48;     N.T.     8/13/2013,              pp.    42-44).

         Second,       Trial Counsel's               advice not to testify was reasonable.

Counsel acts           reasonably          in advising            a defendant              not     to testify

when the defendant's                   testimony" would               allow        the     Commonweal th           to

impeach the defendant                   with      prior      crimen      falsi       convictions.                 See

Commonweal th          v.     Daniels,         999     A. 2d     590,     596        (Pa. Super.            2010) ;

Commonwealth           v.     Thomas,          783     A.2d      328,     335        {Pa.Super.             2001).

Additionally,           counsel           reasonably           advises         a     defendant            not      to

testify when ·counsel believes the jury would not find defendant's

testimony credible.                    See Commonwealth               v. O'Bidos,            849     A.2d       243,

250-51     (Pa. Super.         2004)      (holding trial counsel reasonably                               advised

his   client      not to testify               on the        basis      that       the jury would not

believe     his    testimony            that      he had        a past relationship                      with     the

rape victim).




                                                  {FN-3-14]
                                                      22

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                                                                                           Circulated 03/18/2015 11:22 AM



         Trial       Counsel         advised     Defendant             not     to     testify         for    two

 reasons.          First,       Trial    Counsel      advised          Defendant        not      to    testify

 because     if    he did the Conunonwealth                 would      impeach       him with         evidence

 of his     prior       conviction       for forgery.          (N.T.     8/13/2013,           pp.     41,   54).

 Although         this      crime     was   unrelated          to      the     instant        offense        and

 occurred         several       years    earlier,          Trial       Counsel       was     justified         in

 advising     Defendant         about the negative             impact evidence               of a criminal

 conviction        could       have on the       jury.        Second,        Trial     Counsel         advised

 Defendant        not    to    testify      because        he believed           the    jury        would    not

believe      Defendant's            testimony.        Id. at 39.             Trial     Counsel         did ·not

believe the jury would find credible                               Defendant's          testimony           that

A.O.     fabricated           her testimony about the assault because                               Defendant

declined her sexual advances.                      Id. at 40-41.

         Trial     Counsel's         advice to Defendant                 not    to testify            was not

"so unreasonable as to vitiate a knowing and intelligent                                              decision

to testify         on his own behalf.u                Rather,          Trial     Counsel         reasonably

advised      Defendant about             the risks         of Defendant              taking the stand,

which    it was his professional obligation                            to do and which Defendant

properly      factored         into his decision not to testify.                             Because        this

advice      was     reasonable,          Defendant          "must      bear      the    burden         of    his

decision      not        to    testify       and      cannot        shift       the     blame          to    his

attorney." Corrunonwealth v.                Harper,         614 A.2d         1180,     1188 (Pa.Super.




                                               [FN-3-14]
                                                    23
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                                                                                 Circulated 03/18/2015 11:22 AM




     1992) .      consequently,         we find this final claim to also be without

 merit. is

                                              CONCLUSION

           "The benchmark           for judging any claim of ineffectiveness                            must

 be whether         counsel's        conduct so undermined          the proper     functioning

 of the adversarial              process      that the trial cannot be relied                          on as

 having        produced      a   just    result."         Strickland    v.   Washington,                  4 66

 U.S.      668,    686    (1984).       Against    thia standard,       we find that no act

 or       omission         of       counsel       rendered        Defendant's     convictions

unreliable.              Therefore,      Defendant's          Second Amended    PCRA Petition

will be denied.

                                                          BY THE COURT:




                                                                                                       P. J.




                                                                                     ,-- • ~   '   !




                                                                                                         •. J




                                                                                                         LO



18  Defendant also failed to establish prejudice. Our Superior Court has held
that to establish prejudice the defendant must "articulat~ what testimony he
would have given had he testified at trial" so the court can assess whether
this testimony creates a reasonable probability of a different result.
Corruuonwealth v. Alderman, 811 A.2d 592, 596 (Pa.Super. 2002). Defendant has
not articulated what his testimony would have been at trial, thus, he has failed
to establish prejudice.

                                              ( FN-3-14   J
                                                   24

                                                   13
                                                                              Circulated 03/18/2015 11:22 AM




          IN THE COURT OF COMMON PLEAS            OF   CARBON COUNTY, PENNSYLVANIA

                                     CRIMINAL DIVISION

    COMMONWEALTH       OF PENNSYLVANIA,

                  v.                                      No. 289-CR-2008

    MERRICK STEVEN KIRK DOUGLAS,
                   Defendant

    Jean Engler, Esquire                                 Counsel for Commonwealth
    Assistant District Attorney

    Michael     P. Gough, Esquire                        Counsel for Defendant


                                    MEMORANDUM         OPINION

    Nanovic,    P.J. - August       4, 2014

           The Defendant,    Merrick Steven Kirk Douglas, has appealed from

    our order of June 13,           2014, denying            his Second Amended     Petition

    for    Post-Conviction     Relief       filed       on    May   31,   2013.     Therein,

    Defendant     claimed    both     his   trial        and     appellate   counsel      were

    ineffective    and sought the grant of a new trial.

           By Memorandum     Opinion    dated June 13, 2014, we explained                   the

reasons        for our   denial     of Defendant's            requested   PCRA relief.         A

copy of this Memorandum             Opinion is attached             for the convenience      of

the Court.1




1 On page 4 of the attached Memorandum Opinion we have corrected the date of
the first meeting of the victim with the police from July 12, 2007 to July 11,
2007.   This was an error in our original Memorandum Opinion, but makes no
difference in the analysis.
                                        [FN-42-13]
                                              1
                                                                   Circulated 03/18/2015 11:22 AM



                                          .
     Following Defendant's Notice of Appeal filed on June 27, 2014 ,·

we directed    Defendant    to file a concise statement         of the Matters

Complained    of on Appeal     pursuant       to Pa.R.A.P.   1925{b}.      On July

17, 2014,    Defendant   timely filed the requested concise             statement.

     The issues    raised    in this statement        are identical       to those

raised in Defendant's       Second Amended Petition for Post-Conviction

Relief and were addressed      in our June 13, 2014 Memorandum            Opinion.

For this reason,    we refer the Supe.rior Court to that                opinion to

fulfill our responsibility       under Pa.R.A.P.       1925(a).



                                    BY THE COURT:




                                                                             P.J.




                                                                                ''
                                                                              l-·-.>




                                 [FN-42-13]
                                      2

                                    Jr
