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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
Appe||ee
v.

MASON TYLER SWANSON ,

Appe||ant : No. 586 WDA 2016

Appeal from the PCRA Order March 29, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000913-2013

BEFORE: BOWES, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 06, 2017
Mason Ty|er Swanson (Appellant) appeals from the March 29, 2016

order denying his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On March 6, 2013, Officer Markus Morrison, City of Corry
Police Department, charged Appe||ant with corruption of minors
and indecent assault. In his affidavit of probable cause
accompanying the complaint, Officer Morrison alleged in part:

On 01/31/13, the victim [a] minor child 13 [years] of
age, reported that she took a shower with
[Appellant] 22 [years] of age, while she was
babysitting her sister[']s two children.... Victim
believes the incident occurred sometime during
December 2012 Christmas breal<, during the
afternoon. Victim stated during [her] Children's
Advocacy Center interview that [Appellant] showed
up to her sister[']s house looking for her sister.
Victim told [Appellant] that her sister [was] not
home, [that] she [was] in Erie. While [at the sister's
house], [Appellant] asked the victim to take a
shower with him. Victim stated that she did not want

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to, but did so anyhow due to [Appellant] appearing
upset with her.

Affidavit of Probable Cause, 3/6/13. The case proceeded to a

jury trial, at the conclusion of which Appe||ant was convicted of

corruption of minors and indecent assault. On June 23, 2014, the

trial court sentenced Appe||ant to serve 10 to 24 months in

prison for corruption of minors and a consecutive 6 to 24

months' incarceration for indecent assault. Appe||ant filed a

timely appeal to this Court.

Commonwealth v. Swanson, 121 A.3d 1143 (Pa. Super. 2015)
(unpublished memorandum at 1). On April 27, 2015, this Court affirmed
Appe||ant's judgment of sentence. Id. Appe||ant did not seek review by our
Supreme Court.

On September 8, 2015, Appe||ant timely filed a pro se PCRA petition.
Counsel was appointed and an amended petition was filed. On February 24,
2016, an evidentiary hearing was held. Appe||ant's petition was denied by
order dated March 29, 2016.1 This appeal followed.2

Appe||ant raises two issues for our consideration.

A. Whether the [PCRA] court erred in denying PCRA relief in the

nature of the provision of a new trial in that defense counsel

was ineffective in failing to present and preserve []
Appe||ant's alibi defense?

 

1 The PCRA court issued a notice of intent to dismiss Appe||ant's petition
pursuant to Pa.R.Crim.P. 907. However, that procedure is improper as Rule
907 controls only when the PCRA court determines that no hearing is
required to dispose of the PCRA petition. The court was permitted to dismiss
Appe||ant's PCRA petition following a hearing pursuant to Pa.R.Crim.P.
908(D)(1).

2 The PCRA court did not order Appe||ant to file a concise statement pursuant
to Pa.R.A.P. 1925(b) and none was filed.

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B. Whether the [PCRA] court erred in denying PCRA relief in the
nature of the provision of a new trial given defense counsel's
ineffectiveness in failing to object to the improper form of the
in-court identification of [] Appe||ant in which leading
questions were employed and identification of Appe||ant's
brother was secured instead of [] Appe||ant?

Appe||ant's Brief at 2 (unnecessary capitalization omitted).

“Our standard of review of a trial court order granting or denying relief
under the PCRA calls upon us to determine ‘whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error."'
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).

In both of his issues on appeal, Appe||ant contends that trial counsel
was ineffective. Appe||ant's Brief at 4-9. We presume counsel is effective.
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). To
overcome this presumption and establish the ineffective assistance of
counsel, a PCRA [petitioner] must prove, by a preponderance of the
evidence: “(1) the underlying legal issue has arguable merit; (2) that
counsel's actions lacked an objective reasonable basis; and (3) actual
prejudice befell the [appellant] from counsel's act or omission.”
Commonwealth v. ]0hnson, 966 A.2d 523, 533 (Pa. 2009) (citations
omitted). “[A petitioner] establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. A claim

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will be denied if the [petitioner] fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008).

With respect to his first issue, that counsel was infective for failing to
call Appe||ant's mother to testify at trial to establish an alibi defense,
Appe||ant was required to prove the following.

(1) the witness existed; (2) the witness was available to testify

for the defense; (3) [trial] 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 appellant] a fair trial.
Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).

Appe||ant argues that he met his burden in this regard. His alibi, that
on December 28, 2012, he was at his mother's home in Erie, Pennsylvania,
approximately 35 miles away from the location of the incident, without
access to a vehicle. This was corroborated by his mother, Brenda
Christensen, who was known to defense counsel and willing to testify at trial
on Appe||ant's behalf. Appe||ant's Brief at 6. According to Appe||ant, he
informed counsel of his mother's testimony, but counsel rejected the alibi
defense because the victim was uncertain of the exact date of the incident.
Id.

At the evidentiary hearing in this matter, trial counsel testified that he
discussed the possibility of presenting an alibi defense with Appe||ant on a

number of occasions and, ultimately, after counsel raised a number of

concerns about pursuing this strategy, Appe||ant agreed to forego his alibi

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defense. N.T., 2/24/2016, at 32-33, 37. Specifically, counsel stated that he
advised Appe||ant that, because the discovery materials did not identify a
specific date on which the incident was alleged to have occurred, the
testimony at trial might vary, rendering the alibi testimony specific to Friday,
December 28, 2012, immaterial.3 Id. at 34-35. Instead, counsel suggested
a trial strategy that involved attacking the victim's overall credibility.

The alibi really had no corroboration. The victim didn't
report this to authorities until the, I understand, the very end of
January. It was a school person that she reported it to and not
her mother. I felt that this was -- that was a good ground to
argue to the jury. She also gave a couple different explanations.
She admitted that -- and I think it was in the materials of the
discovery materials too -- she admitted she told -- the first
people she told about this was several of her girlfriends but that
she lied to them because they would be mad that she didn't tell
them everything the first time she told the story. Secondly, she
told the school people another story that there had been -- that-
- he came over and that he nuzzled up to her on the couch, he
persuaded her to take a shower but they did not have sex, which
I found a little bit peculiar. And then in the police report she
says that they had sex. I thought that these were pretty good
grounds to attack on credibility, in my opinion, and that an alibi

 

3 The affidavit of probable cause in this case indicates that the victim
reported the incident to a teacher on January 31, 2013. Affidavit of Probable
Cause, 3/6/2013. The affidavit notes that the victim “believes the incident
occurred sometime during December 2012 Christmas break." Id. However,
the criminal information lists the date of the incident as “on (or about)
December 28, 2012." Criminal Information, 4/17/2013, at 1. Appe||ant
waived his preliminary hearing, and the notes of testimony from Appe||ant's
jury trial reveal that an exact date is never given. The victim's sister testified
that she believed the incident happened on a Saturday after Christmas. N.T.,
2/12/2014, at 68-69. The victim testified that the incident occurred one
morning in late December, after Christmas. Id. at 22-23. Defense counsel
did not cross examine the victim as to the date of the incident, but instead
focused on the timeliness of the report and inconsistent statements the
victim made to friends, her teacher, the forensic investigator, and the police.
Id. at 38-45.

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defense put too many eggs in one basket. I didn't feel it would

be credible. We're saying the girl is wrong for all of these

reasons and by the way I wasn't even there. He told me from

the get-go that he went over and knocked on the door, nobody

was there, and the [victim] wasn't -- person he was looking for,

I think was the [victim's] sister, she wasn't there and he left. So

I explained to him that, you know, in my opinion that was too

many eggs to put in one basket, that the jury probably would

penalize him for that.

Id. at 36-37. Counsel further elaborated that the only specific alibi
information Appe||ant could provide was his mother's testimony that he was
at her house all day on December 28; however, because the timeframe was
“indefinite" and the twenty-minute long incident “could have occurred any
time over Christmas vacation,” in order for the alibi to be viable, Appe||ant's
mother would have had to testify that he was with his mother during the
entirety of the victim's Christmas break. Id. at 38-39. On cross-
examination, counsel expressed his concern that it “probably wasn't going to
be credible for a grown man to say he was with his mother and by her side
for 20 some days” over the victim's vacation. Id. at 43-44.

Based on the foregoing, counsel's decision not to call Appe||ant's
mother as an alibi witness had a reasonable, objective basis. See Johnson,
966 A.2d at 533. Consequently, this Court discerns no legal error in the
PCRA court's denial of Appe||ant's first claim of ineffective assistance of
counsel. See Springer, 961 A.2d at 1267.

Appe||ant next claims that the victim's in-court identification was

improper and counsel was ineffective for failing to object and preserve this

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issue for appeal. Appe||ant's Brief at 7-8. Specifically, Appe||ant contends
that the Commonwealth “expressly engaged in leading questions and
afforded distinct assistance relative to the alleged victim's basic identification
of [Appellant] within the courtroom during her testimony." Id. at 7. Further,
Appe||ant argues that the victim “actually identified his brother based
upon his location in the court room and his clothing and facial hair at the
time of trial." Id. at 8.
The PCRA court addressed this claim as follows.

Trial counsel need not forward every possible objection at a trial
to be constitutionally effective. Commonwealth v. Koehler, 36
A.3d 121, 146 (Pa. 2012). The decision when and if to interrupt
with an objection is often “a function of overall defense strategy
being brought to bear upon issues which arise unexpectedly at
trial and require split-second decision-making by counsel.” Id.
Consequently, trial counsel may forego objecting to prevent
highlighting the objectionable remark to the jury. Id.

In [Appellant's] case there was never a question of identity
of the perpetrator. [Appellant] was a friend of [the victim's]
family for years and specifically knew [the victim's] sister. In
[the victim's] words, she had known him “forever." After this
testimony, [the victim] identified [Appellant] in the courtroom:

[District Attorney]: Is [Mason Swanson] in the
courtroom today?

[The Victim]: Yes.

[District Attorney]: Could you please point to him
and say what he is wearing?

[The Victim]: A tie.
[District Attorney]: May need to be a little more
specific.

[The Victim]: Tie and a coat.

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[District Attorney]: Does he have a beard?
[The Victim]: Yeah.

[District Attorney]: Can you be a little more specific
as to the color of his tie, []?
Look over there.

[The Victim]: Black and gold.

[District Attorney]: Okay. Your Honor is that enough
to-

THE COURT: Yes, I think so.
[District Attorney]: Thank you. All right. Thank you.

THE COURT. Okay. The record shall reflect she's
identified the defendant.

[The victim] identified [Appellant] in the courtroom by
pointing and describing an article of his clothing. While at first
the identification was not very specific, it was in line with the
appearance of [Appellant]. Importantly, the identification came
immediately after [the victim] testified she knew [Appellant]
since she was very young and knew him by name. Objecting at
that time could have unnecessarily highlighted that [Appellant]
and [the victim] knew each other prior to the incident
reaffirming the identification.

Additionally, the objection would have been at odds with
[Appellant's] overall trial strategy. [Appellant's] defense was not
one of mistaken identity where the perpetrator was a
misidentified stranger. Instead, [Appellant] argued the events
were fabricated and attacked the victim's credibility based on
inconsistent statements.

Finally, it was the [c]ourt who determined enough
testimony had been adduced for an in court identification. Thus,
[Appellant's] current argument required counsel to object to an
identification that had already been affirmed by the presiding
judge in the presence of the jury. Such an objection would have
been fruitless at that time.

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PCRA Court Opinion, 3/8/2016, at 4-6 (citations to notes of testimony
omitted).

The PCRA court concluded that Appe||ant's argument on this issue
lacked arguable merit. We agree. The district attorney's questions were not
leading, and the in-court identification was confirmed by the trial court.
Moreover, Appe||ant's contention that the victim mistakenly identified his
brother as “Mason Swanson" lacks support from the record.4 Accordingly,
we find that counsel was not ineffective in failing to object to the victim's in-
court identification. See Commonwealth v. Tilley, 80 A.2d 649 (Pa. 2001)
(holding that counsel will not be deemed ineffective for failing to raise a
meritless claim).

Order affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 4[6[2017

 

4 At the evidentiary hearing, trial counsel testified that he discerned no issue
with the victim's in-court identification. He recalled that the victim pointed at
Appe||ant when asked to identify Mason Swanson, and that she accurately
described what he was wearing. Appe||ant was the only other person seated
at counsel table and counsel stated that the victim did not point to or
identify anyone in the gallery. N.T., 2/24/2016, at 39-40.

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