J-S50042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIELLE MARIE FALCON                      :
                                               :
                       Appellant               :   No. 722 WDA 2019

                  Appeal from the Order Entered April 18, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0002450-2013


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED NOVEMBER 25, 2019

        Appellant, Danielle Marie Falcon, appeals, pro se, from the order entered

April 18, 2019, dismissing her first petition filed under the Post Conviction

Relief Act (“PCRA”)1 without a hearing. We affirm.

        On May 4, 2016, a jury convicted Appellant of one count of attempted

murder, two counts of aggravated assault, two counts of simple assault, and

one count of recklessly endangering another person2 related to a June 18,

2013 incident in which Appellant struck Kaitlin Ruby (“the victim”) with her

car. This Court previously summarized the factual background developed at

trial as follows:

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 901(a), 2702(a)(1) and (4), 2701(a)(1) and (2), and 2705,
respectively.
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     On June 18, 2013, the victim had plans with Erick Adams
     (hereinafter “Mr. Adams”) and their children. The victim stated
     that when they returned to Mr. Adams’ house and saw Appellant
     in the driveway, Mr. Adams drove the victim to the tanning salon
     instead. The victim attempted to call Mr. Adams to pick her up
     but when he didn’t answer, she decided to walk to his residence.
     As the victim was turning on Buckeye Tram Road, she observed
     Appellant drive past her and then complete a U-turn in the middle
     of the road. At this point, Randy Gowton (hereinafter “Mr.
     Gowton”) offered the victim a ride, and dropped her off in front of
     Mr. Adams’ residence. The victim then observed Appellant’s
     vehicle directly behind Mr. Gowton’s truck. The victim recalls
     hearing Appellant gas her vehicle, and as the victim looked back,
     she saw Appellant’s vehicle, coming towards her, and then striking
     her. The victim remembers being under the vehicle and then lying
     in the grass while attempting to move. As the victim watched
     Appellant’s vehicle turn around, she remembers yelling “please
     stop, don’t do this.” At this point, Appellant exited her vehicle,
     and told the victim she was going to take her to the hospital.
     Appellant attempted to pick up the victim and place her in the
     vehicle. Mr. Gowton returned and stayed with the victim until the
     ambulance arrived. The victim was then flown by Life Flight to a
     hospital where she stayed for approximately one month. . . .

     Mr. Gowton corroborated the victim’s testimony regarding the
     incident on June 18, 2013. Mr. Gowton testified that he was
     driving down Buckeye Tram Road, saw a woman whom he knew
     to be associated with his neighbor, Mr. Adams, and offered her a
     ride because it started to rain. The woman, later identified as the
     victim, accepted the ride. While Mr. Gowton was driving the victim
     to Mr. Adams’ house, he noticed a maroon SUV behind him. When
     Mr. Gowton approached the residence, he pulled over so the SUV
     could pass, but instead it stopped. After the victim exited the
     vehicle and as Mr. Gowton was driving away, he looked in his
     driver side vehicle and observed the vehicle driving through the
     driveway and striking the victim. Mr. Gowton then parked his
     vehicle, saw his neighbor Alex, and ordered him to call 911. When
     Mr. Gowton approached the area of the incident, he observed
     Appellant attempting to place the victim into her vehicle. Mr.
     Gowton then pulled the victim out of the vehicle, laid her on the
     ground, and stayed with her until the firemen and ambulance
     arrived.

     Mr. Adams testified that earlier on the same date, as he was
     returning to his residence on Buckeye Tram Road with the victim

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      and their two children, he saw Appellant at his house and
      continued to drive past his house, and took the victim to Sun
      Kissed Tanning, approximately one-mile from his residence. Mr.
      Adams returned home where Appellant was waiting, and Appellant
      collected her belongings that were still at the residence. When he
      left with the children to pick up the victim, he was not able to find
      the victim. Mr. Adams then returned home within minutes after
      receiving a call from his neighbor about the incident at his
      residence. When he returned home, he saw the victim lying on
      the ground and Appellant’s vehicle in the yard. Emergency
      personnel arrived shortly thereafter. . . .

      Casandra Rowe (hereinafter “Ms. Rowe”) testified as to her
      relationship with the victim prior to and at the time of the incident.
      She stated that, around May and June of 2013, the victim lived
      with Ms. Rowe. At that time, the victim did not have her own
      cellular phone. However, Ms. Rowe did, in fact, possess a cellular
      phone in which the victim’s Facebook account was added. Ms.
      Rowe stated that she observed private messages on the victim’s
      Facebook account from Appellant. Ms. Rowe admitted the she was
      the one who responded to the Facebook messages from Appellant,
      not the victim. Specifically, Ms. Rowe explained that the initial
      message was sent from Appellant on June 15th and two days later,
      Ms. Rowe sent her last text message at approximately 1:00 a.m.
      on June 18, 2013. Appellant then sent the victim a message at
      8:35 a.m. on June 18, 2013, the date of the incident, which
      stated, “[y]ou look like a beatup China rag doll bitch I will ‘F’ you
      up I dare you to step to me I F-in dare you bring it.”

Commonwealth v. Falcon, No. 1730 WDA 2016, unpublished memorandum

at 1-2 (Pa. Super. filed May 15, 2017) (quoting Trial Court Opinion, 12/20/16,

at 1-4) (footnotes and some internal brackets omitted).

      On May 4, 2016, Appellant was convicted of the aforementioned

charges. On October 11, 2016, the trial court sentenced Appellant to 7½ to

15 years of imprisonment on the attempted murder charge with the remaining

charges merging with the attempted murder charge for the purpose of

sentencing. Appellant appealed, and this Court issued a decision affirming the


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judgment of sentence on May 15, 2017. Appellant did not file a petition for

allowance of appeal with our Supreme Court.

      Appellant filed, pro se, the instant timely first PCRA petition on May 3,

2018. On May 9, 2018, the PCRA court entered an order appointing Amy

Keim, Esquire, as counsel for Appellant and directing Attorney Keim to file an

amended PCRA petition or a no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). On July 2, 2018, the PCRA court granted

Attorney Keim’s request to withdraw as counsel, appointed Matthew Schimizzi,

Esquire, as PCRA counsel for Appellant, and directed Attorney Schimizzi to file

an amended PCRA petition or a no-merit letter.

      On January 16, 2019, Attorney Schimizzi filed a petition for leave to

withdraw as PCRA counsel and a no-merit letter. On February 25, 2019, the

PCRA court issued a notice of its intention to dismiss the PCRA petition without

further proceedings pursuant to Rule of Criminal Procedure 907(1) (“Rule 907

Notice”). On March 21, 2019, Appellant filed a response to the Rule 907 Notice

and an application seeking leave to amend her PCRA petition. The PCRA court

granted Appellant’s application, and Appellant filed, pro se, an amended PCRA

petition on April 12, 2019.

      On April 18, 2019, the PCRA court entered an order dismissing

Appellant’s PCRA petition and amended PCRA petition. The court stated that

it had reviewed the amended petition and Appellant had failed to present any

additional issues that would entitle her to PCRA relief and therefore the

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amended PCRA petition was dismissed on the same grounds as stated in the

Rule 907 Notice. In addition, the court granted Attorney Schmizzi’s petition

to withdraw as Appellant’s counsel. Appellant filed, pro se, a timely appeal of

the April 18, 2019 order.3

       In her appeal, Appellant argues that her trial counsel provided

ineffective assistance; though her arguments are not divided into separate

sections in her brief, we are able to identify nine alleged instances of

ineffective assistance.4 We review the denial of a PCRA petition to determine
____________________________________________


3  The PCRA court did not file an order directing Appellant to file a concise
statement of errors complained of on appeal, and instead on May 21, 2019,
filed a decree pursuant to Rule of Appellate Procedure 1925(a) stating that
the reasons for the decision to dismiss the original and amended PCRA
petitions appeared in the Rule 907 Notice.
4 The argument section of Appellant’s brief is presented in a free-flowing
format that is not divided into separate sections or even separate paragraphs
for each claim of ineffective assistance. See Appellant’s Brief at 11-14.
Additionally, the “Summary of Argument” portion of Appellant’s brief is an
interpretation of the facts of the case from her own point of view, with no
actual presentation of a summary of her arguments. See id. at 7-10;
Pa.R.A.P. 2118 (“The summary of argument shall be a concise, but accurate,
summary of the arguments presented in support of the issues in the statement
of questions involved.”). Despite these deficiencies in Appellant’s brief, we
nonetheless conclude that our review of this appeal is not impeded.
Appellant also asserts in her statement of questions presented that she is
challenging the effectiveness of her counsel in her direct appeal. See
Appellant’s Brief at 4 (“Whether the PCRA Court erred in failing to grant relief
based on Layered Ineffective Assistance of Counsel of Trial and Appellate
Counsels?”). However, Appellant did not present any argument regarding the
alleged ineffective assistance of appellate counsel and instead her arguments
solely relate to trial counsel. In any event, any claim by Appellant of
ineffective assistance of counsel on behalf of her appellate counsel would fail
because Appellant failed to establish that her trial counsel provided ineffective
representation. See Commonwealth v. Mason, 130 A.3d 601, 618-19 (Pa.
2015).

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whether the record supports the PCRA court’s findings and whether its decision

is free of legal error. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa.

2018).

      In assessing a claim of ineffective assistance under the PCRA, we begin

our analysis with the presumption that counsel has rendered effective

assistance. Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018).

To overcome that presumption, the convicted defendant must establish each

of the following three elements:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s action or failure to act; and (3) the
      petitioner suffered prejudice as a result of counsel’s error, with
      prejudice measured by whether there is a reasonable probability
      that the result of the proceeding would have been different.

Id. “Arguable merit exists when the factual statements are accurate and could

establish cause for relief. Whether the facts rise to the level of arguable merit

is a legal determination.” Commonwealth v. Urwin, ___ A.3d ___, 2019

PA Super 276, *8 (filed September 10, 2019) (citation omitted).

      With regard to the second, reasonable basis prong, we do not
      question whether there were other more logical courses of action
      which counsel could have pursued; rather, we must examine
      whether counsel’s decisions had any reasonable basis. We will
      conclude that counsel’s chosen strategy lacked a reasonable basis
      only if Appellant proves that an alternative not chosen offered a
      potential for success substantially greater than the course actually
      pursued. To establish the third, prejudice prong, the petitioner
      must show that there is a reasonable probability that the outcome
      of the proceedings would have been different but for counsel’s
      ineffectiveness. We stress that boilerplate allegations and bald
      assertions of no reasonable basis and/or ensuing prejudice cannot
      satisfy a petitioner’s burden to prove that counsel was ineffective.



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Commonwealth v. Chmiel, 30 A.3d 1111, 1127-28 (Pa. 2011) (internal

citations and quotation marks omitted).

      In her first issue, Appellant argues that trial counsel was ineffective for

failing to investigate or present evidence related to her mental health history

of post-traumatic stress disorder (PTSD) and anxiety disorder. A review of

the record reflects that a mental health evaluation was prepared on December

29, 2014 in advance of trial; following her conviction, the counsel that

Appellant retained for the sentencing and appeal was given leave to conduct

a second mental health evaluation, which was completed on September 20,

2016 and submitted to the trial court for sentencing. N.T., 10/11/16, at 3.

PCRA counsel reviewed these mental health records, as well as a subsequent

Department of Corrections psychological evaluation, and determined that,

though there was evidence of childhood abuse, no diagnosis of PTSD was

made. No-Merit Letter at 3-4; see also N.T., 10/11/16, at 8-9.

      To the extent Appellant asserts that trial counsel was ineffective for

failing to investigate whether she suffered from PTSD, this claim lacks

arguable merit because a mental health evaluation was performed in advance

of trial. PCRA counsel’s investigation did not reveal that Appellant had been

diagnosed with PTSD, and no other evidence of record establishes that

Appellant received a PTSD diagnosis. As to the issue of whether trial counsel

was ineffective for not introducing evidence related to Appellant’s mental

health at trial, Appellant has not demonstrated that trial counsel lacked a

reasonable basis for not introducing such evidence. Trial counsel’s theory of

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the case was that Appellant did not intentionally strike the victim with her

vehicle, but that the impact was an accident as Appellant was pulling into

Adams’ driveway. See, e.g., N.T, 5/3/16, at 51, 54; N.T., 5/4/16, at 234-37.

Evidence related to Appellant’s mental state was not consistent with this

strategy. Appellant has not demonstrated that a strategy in which she would

concede that her collision with the victim was volitional but should be excused

based upon her history of abuse or mental health issues offered a potential

for success substantially greater than the strategy actually pursued.5 Chmiel,

30 A.3d at 1127.         Finally, we note that Appellant’s pre- and post-trial

psychological evaluations were in fact considered by the trial court as

mitigating evidence when it issued Appellant’s sentence. N.T., 10/11/16, at

8.

       Next, Appellant claims that trial counsel was ineffective because he did

not call any witnesses to testify regarding her character, her mental health

history, and “ongoing issues” with the victim. Appellant’s Brief at 12. Trial

counsel’s failure to call a particular witness does not constitute per se

ineffectiveness. Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009). In

order to establish that trial counsel was ineffective for failing to call a witness

at trial, the PCRA petitioner must demonstrate that:

____________________________________________


5In addition, we further note that the defense of diminished capacity based
upon mental defect would not have been available to Appellant unless she had
admitted criminal liability and only sought to contest the degree of culpability
based upon an inability to formulate the specific intent to kill.
Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011).

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        (1) the witness existed; (2) the witness was available to testify
        for the defense; (3) counsel knew of, or should have known of,
        the existence of the witness; (4) the witness was willing to testify
        for the defense; and (5) the absence of the testimony of the
        witness was so prejudicial as to have denied the defendant a fair
        trial.

Commonwealth v. Medina, 209 A.3d 992, 998 (Pa. Super. 2019) (citation

omitted).

        Appellant does not identify any witness who would have testified on her

behalf in her appellate brief.        In her amended PCRA petition, Appellant

identified Bonnie Urbanek and Amber Urbanek, who Appellant claimed would

testify that she “[t]ried to present evidence to [trial] [c]ounsel, the plea deal,

the relationship between Eric Adams and [Appellant], mental health history,

and the pressure inflicted on [Appellant].”               Amended PCRA Petition at 4

(unpaginated).        However, Appellant failed to plead that trial counsel was

aware of either of the identified witnesses or that they were willing to testify

on Appellant’s behalf. See Medina, 209 A.3d at 998 (trial counsel was not

ineffective for failure to call character witnesses where the petitioner did “not

plead that trial counsel knew or should have known of the existence of these

potential character witnesses”). Furthermore, Appellant has not established

that the absence of the testimony of either of the witnesses was so prejudicial

as to have denied the defendant a fair trial.              Appellant simply states the

subjects that these witnesses would testify about without any description of

the effect such testimony would have had on Appellant’s trial, and several of

these    identified    subjects   relate   to    issues    of   trial   counsel’s   alleged

ineffectiveness that would be relevant only in this PCRA proceeding.                   See

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Commonwealth v. Goodmond, 190 A.3d 1197, 1202 (Pa. Super. 2018)

(defense counsel was not ineffective where the petitioner had “failed to

establish the absence of the proposed witnesses’ testimony was so prejudicial

as to deny him a fair trial”). Appellant has therefore failed to establish grounds

for PCRA relief on this claim.

      In her third issue, Appellant argues that trial counsel was ineffective for

failing to disclose discovery material to her. Appellant did not raise this issue

in either her initial PCRA petition or her amended PCRA petition. Therefore,

this issue is waived. See Pa.R.Crim.P. 902(B) (“Each ground relied upon in

support of the relief requested shall be stated in the petition. Failure to state

such a ground in the petition shall preclude the defendant from raising that

ground    in   any   proceeding      for   post-conviction   collateral   relief.”);

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (“[A] claim not

raised in a PCRA petition cannot be raised for the first time on appeal.”).

      Appellant next argues that trial counsel was ineffective for failing to

impeach the credibility of Mr. Gowton regarding his testimony that he

observed Appellant’s vehicle striking the victim in Mr. Adams’ driveway on

Buckeye Tram Road. Mr. Gowton testified that, after he dropped the victim

off there and he was approaching an intersection, he had an unobstructed

view through his driver’s side mirror of Appellant’s maroon sports utility

vehicle striking the victim.     N.T., 5/3/16, at 62-63, 66, 68-69.       Appellant

contends that Mr. Gowton’s testimony was contradicted by Trooper Steven

Siko, an expert in crash reconstruction and analysis, who testified that the

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scene of the incident was obstructed by hedges and bushes when viewed from

the intersection of Buckeye Tram Road and Buckeye Road, the closest

intersection to Mr. Adams’ house. N.T., 5/4/16, at 166.

      Even assuming that Trooper Siko’s testimony directly calls into question

whether Mr. Gowton had an unobstructed view of the collision, the issue of

whether Appellant made impact with the victim was not in dispute at the trial.

Appellant provided a written statement to police on the day of the incident in

which she admitted that her vehicle made impact with the victim.           N.T.,

5/3/16, at 102-14. In addition, surveillance video from Mr. Adams’ house was

played for the jury showing the direct aftermath of the collision in which

Appellant exited her vehicle and attended to the victim. Id. at 94-100. The

victim likewise testified that she recalled hearing Appellant gas her vehicle and

drive “full throttle” at her before the impact.         N.T., 5/4/16, at 195.

Furthermore, as discussed above, trial counsel’s defense rested on the

argument that Appellant’s contact with the victim was accidental while

Appellant was attempting to pull into Mr. Adams’ driveway. N.T, 5/3/16, at

51, 54; N.T., 5/4/16, at 234-37. As Appellant conceded that her vehicle made

impact with the victim, she has failed to show prejudice from any failure to

impeach Mr. Gowton regarding his view of the incident.

      In her fifth issue, Appellant argues that trial counsel was ineffective for

failing to subpoena “phone records that would have shown ongoing issues with

the victim, [Ms.] Rowe, and [] Appellant as well as the relationship [] between

Appellant and [Mr.] Adams.”       Appellant’s Brief at 13.     The PCRA court

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concluded that Appellant had failed to show arguable merit, a lack of a

reasonable basis, or prejudice related to this claim. Rule 907 Notice at 9-10.

We agree with this assessment.       In her PCRA petition, Appellant does not

explain how trial counsel subpoenaing her phone records would have

potentially affected the outcome of the trial aside from her conclusory

allegation that records of her messages with Mr. Adams and the victim would

show that their testimony “consisted of perjury.” PCRA Petition, Addendum.

Similarly, in her brief, Appellant only vaguely asserts that her relationship with

Mr. Adams was “a key factor in the issues between Appellant and the victim

and was downplayed and misrepresented” during trial. Appellant’s Brief at

13. Such boilerplate allegations of ineffectiveness are an insufficient basis

upon which to support an award of PCRA relief. Chmiel, 30 A.3d at 1128.

      In her next two issues, Appellant contends that trial counsel was

ineffective for failing to object to the introduction of messages exchanged

between Appellant and the victim that Appellant claims were unfairly

prejudicial to her and for failing to introduce forensic evidence. Neither of

these issues, however, was pled in Appellant’s original or amended PCRA

petitions, and therefore these issues are waived. See Pa.R.Crim.P. 902(B);

Santiago, 855 A.2d at 691.

      In her eighth appellate issue, Appellant argues that trial counsel put

“undue pressure” on her to take her case to trial and not accept the plea deal

offered by the prosecution that would have required her to serve a three-to-

six-year term of imprisonment. Appellant’s Brief at 14. Appellant contends

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that she was “naïve to the law and what she should do and trusted her lawyer

thinking he would not lead her in the wrong directions.” Id. Appellant asserts

that she was prejudiced based on the substantially longer sentence she

received following trial.

      This claim lacks arguable merit. “[C]ounsel has a duty to communicate

plea bargains to his client, as well as to explain the advantages and

disadvantages of the offer.” Commonwealth v. Marinez, 777 A.2d 1121,

1124 (Pa. Super. 2001). However, the decision of whether to accept or reject

a plea deal is ultimately left to the defendant. Commonwealth v. Copeland,

554 A.2d 54, 60 (Pa. Super. 1988).      Beyond her bald assertion that trial

counsel applied “undue pressure” on her to not accept the plea offer, Appellant

has not alleged that trial counsel provided misleading or incomplete

information to her or refused to answer any questions she may have had

regarding the offer. Cf. Commonwealth v. Steckley, 128 A.3d 826, 830-

32 & n.2 (Pa. Super. 2015) (trial counsel was ineffective where she did not

inform defendant during plea negotiations that he would face a 25-year

mandatory minimum sentence if convicted following trial and prosecution was

offering substantially shorter recommended sentence if defendant entered a

guilty plea); Copeland, 554 A.2d at 60-61 (trial counsel was ineffective where

he only supplied an “‘offhanded’ presentation” of the plea deal without a full

explanation of the risks and benefits of accepting the deal).      Appellant’s

decision whether to accept the Commonwealth’s plea offer was her own, and

she is not aggrieved merely because she took the risk of going to trial and

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lost. Copeland, 554 A.2d at 60; see also Commonwealth v. Kehr, 180

A.3d 754, 758 (Pa. Super. 2018) (“[N]o one would suggest that a defendant’s

decision to reject a plea offer in favor of a jury trial ‘became’ involuntary once

the defendant lost and received a harsher sentence than offered by the

plea.”).

      In her final issue, Appellant argues that trial counsel was ineffective

because he did not permit Appellant to testify on her own behalf. It is well-

settled that

      [t]he decision of whether or not 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 that 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.

Commonwealth v. Sandusky, 203 A.3d 1033, 1075 (Pa. Super. 2019)

(citation omitted). Furthermore, “where a defendant voluntarily waives his

right to testify after a colloquy, he generally cannot argue that trial counsel

was ineffective in failing to call him to the stand.” Id. (citation omitted).

      At the close of the prosecution’s case, trial counsel explained to the trial

court that Appellant tentatively had decided not to testify at trial based upon

concerns that she would be cross-examined regarding Facebook messages she

had sent to the victim; trial counsel then requested that he and Appellant be

afforded the opportunity to discuss the subject again during a lunch recess.

N.T., 5/4/16, at 215-16, 218. Following the recess, trial counsel informed the


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court that Appellant had read the Facebook messages and it was a “tough

decision,” but she ultimately decided not to testify. Id. at 219, 225. The

court then conducted the following colloquy:

     Q.     [Appellant], have you had an opportunity to discuss your
     right to testify at this trial with [trial counsel]?

     A.    Yes.

     Q.    And has he given you some advice on that issue?

     A.    Yes.

     Q.    Do you understand that it is only your decision as to whether
     or not you testify at your trial?

     A.    Yes.

     Q.   [Trial counsel] cannot make that decision for you. Do you
     understand that?

     A.    Yes.

     Q.     Although he can give you certain advice, if you want to
     testify, that is your absolute right to do so.

     A.    Okay.

     Q.   Have you had sufficient time to discuss that with [trial
     counsel]?

     A.    Yes.

     Q.     Have you made a decision on whether or not you wish to
     testify at your trial?

     A.    Yes.

     Q.    What is your decision?

     A.    I’m not going to testify.

     Q.    Do you have any questions about that?

     A.    No.



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      Q.    Do you need any additional time to speak to [trial counsel]
      before making that decision?

      A.    Um, could I have a moment with him?

Id. at 226-27. The trial court then provided Appellant opportunity to discuss

the issue further with trial counsel and continued the colloquy:

      Q.     You just had a couple of moments to talk to [trial counsel],
      is that right?

      A.    Yes.

      Q.    Are you still intending not to testify?

      A.    Yes.

      Q.    Any questions about that?

      A.    No.

Id. at 227-28.

      Based on this colloquy, the PCRA court concluded that Appellant’s claim

of ineffective assistance related to her decision not to testify lacked arguable

merit. Rule 907 Notice at 11-12. We agree. The record reflects that, following

consultation with trial counsel and a colloquy by the trial court, Appellant made

a knowing and intelligent decision not to testify on her own behalf.           No

evidence exists that trial counsel interfered with Appellant’s right to testify or

gave her unreasonable advice regarding the decision whether to testify, but

rather trial counsel expressed a valid concern regarding cross-examination

related to the Facebook messages with the victim.

      For the foregoing reasons, Appellant is not entitled to PCRA relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2019




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