J-S60032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOHN EDWARD HALL, II                       :
                                               :
                      Appellant                :   No. 273 WDA 2017

                 Appeal from the PCRA Order January 12, 2017
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000055-2013


BEFORE:      OLSON, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED SEPTEMBER 15, 2017

        Appellant John Edward Hall appeals from the order entered by the

Court of Common Pleas of Erie County denying Appellant’s petition pursuant

to the Post Conviction Relief Act (“PCRA”).1 Appellant raises four claims of

ineffective assistance of counsel. We affirm.

        On September 17, 2013, a jury convicted Appellant of sexual assault

and indecent assault stemming from Appellant’s interaction with a female

college student in the early morning hours of October 1, 2012.           On the

previous evening, the victim attended a party at an off-campus residence

where she consumed alcoholic beverages.             At the end of the night, the

victim, admittedly “buzzed” from alcohol, fell asleep in an upstairs bedroom.


____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.


____________________________________
*     Former Justice specially assigned to the Superior Court.
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      The victim asserted that when she awoke in the dark bedroom, she

discovered a man had pulled her bra and shirt up to her neck and was

attempting to take her pants off.    Although the victim attempted to resist

her attacker, the man held her down and forced his penis into her vagina.

As the victim continued to hit her attacker across the face, the assailant

moved away from the victim, got dressed, and moved to the door. From the

outside light in the hall, the victim was able to identify her attacker as

Appellant. At trial, Appellant testified that he and the victim had consensual

sexual intercourse while he was intoxicated.

      After Appellant was convicted of the aforementioned offenses, the trial

court sentenced Appellant to an aggregate term of three to six years’

incarceration. Appellant filed a post-sentence motion, which the trial court

denied.   On November 3, 2014, this Court affirmed the judgment of

sentence. Appellant did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court.

      On December 3, 2015, Appellant filed this timely, counseled PCRA

petition. On June 27, 2016, the PCRA court held an evidentiary hearing. On

September 12, 2016, Appellant filed an amended PCRA petition with leave of

court. On January 12, 2017, the PCRA court filed an order and an opinion

dismissing Appellant’s petitions.   On February 8, 2017, Appellant filed this

timely appeal.

      Appellant raises four issues for our review on appeal:




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      I.     The PCRA court erred in concluding that trial counsel was
             not ineffective for failing to discuss with [Appellant] the
             crucial nature of character witnesses; for failing to
             investigate, interview, and consider potential character
             witnesses; and for failing to call character witnesses on
             Hall’s behalf where evidence of Hall’s good character would
             have been enough to establish reasonable doubt.

      II.    The PCRA Court erred in concluding that trial counsel was
             not ineffective for failing to ask the Court to include a jury
             instruction on prior inconsistent statements during the final
             instructions to the jury.

      III.   The PCRA Court erred in concluding that trial counsel was
             not ineffective for pursuing an unreasonable trial strategy in
             a sex assault case, which consisted of establishing that the
             victim was too intoxicated to remember what happened
             during the incident.

      IV.    The PCRA Court erred in concluding that trial counsel was
             not ineffective in handling the Commonwealth’s expert
             witness, Dr. Larson.

Appellant’s Brief, at 6.

      In reviewing the lower court’s decision to deny Appellant’s PCRA

petition, we examine whether the PCRA court's determination “is supported

by the record and free of legal error.” Commonwealth v. Mitchell, --- Pa.

---, 141 A.3d 1277, 1283–84 (2016). In order to be eligible for PCRA relief,

the petitioner must prove by a preponderance of the evidence that his

conviction or sentence resulted from one or more of the enumerated

circumstances found in 42 Pa.C.S. § 9543(a)(2), which includes the

ineffective assistance of counsel.

      “It is well-established that counsel is presumed effective, and to rebut

that presumption, the PCRA petitioner must demonstrate that counsel's



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performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on

an ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)). “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.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966

A.2d 523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694).                 The

failure to satisfy any one of the three prongs will cause the entire claim to

fail. Sneed, 616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

      First, Appellant claims that trial counsel was ineffective in failing to

discuss with Appellant the importance of character evidence and in failing to

investigate and call character witnesses to call on Appellant’s behalf.

      “To be entitled to relief on a claim of ineffectiveness for failure to
      call a witness, [an] appellant must demonstrate [that]: the
      witness existed, was available, and willing to cooperate; counsel
      knew or should have known of the witness; and the absence of
      the   witness's     testimony      prejudiced     [the]   appellant.”
      Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 319, 334


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      (2011) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750
      A.2d 261, 275 (2000)). A PCRA petitioner cannot succeed on
      such a claim if the proposed witness' testimony “would not have
      materially aided him. In such a case, the underlying-merit and
      prejudice prongs of the [ineffective assistance of counsel] test
      logically overlap.” Commonwealth v. Baumhammers, 625
      Pa. 354, 92 A.3d 708, 725 (2014). “To show prejudice, the
      petitioner must demonstrate that there is a reasonable
      probability that, but for counsel's allegedly unprofessional
      conduct, the result of the proceedings would have been different.
      A reasonable probability is a probability sufficient to undermine
      confidence in the outcome.” Id. (citing Commonwealth v.
      Gibson, 597 Pa. 402, 951 A.2d 1110, 1120 (2008)).

Commonwealth v. Brown, 161 A.3d 960 (Pa.Super. 2017) (quoting

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1284 (2016)).

      Although Appellant alleges that trial counsel, Atty. Stephen Colafella,

did not advise him of the importance of presenting character witnesses,

Appellant admits that he met with counsel five times before trial, and on at

least two of those occasions they discussed presenting character witnesses.

Appellant specifically recalls counsel asking him for names of potential

character witnesses that had particular “qualifications.” Notes of Testimony

(N.T.), PCRA hearing, 7/27/16, at 27-29, 37. Atty. Colafella indicated that

he asked Appellant to give him names of possible character witnesses and

advised Appellant that it would be best to call witnesses who were not

relatives and who already knew that Appellant was accused of sexual

assault.

      Appellant conceded that he only gave counsel one name, that of a

district magistrate, who was prohibited by rules of judicial ethics from

testifying as a character witness. Moreover, Appellant admitted that he told


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counsel that he did not want any of his family or friends involved in this case

because “[i]t was an embarrassing situation that I didn’t want my entire

community to know about.”        N.T. at 36.   Atty. Colafella indicated that as

Appellant would not give him any names of possible witnesses, he respected

Appellant’s request for privacy. However, Atty. Colafella asserted that, had

Appellant supplied a name of a possible character witness, he would have

investigated Appellant’s lead.

      Based on the foregoing circumstances, Appellant’s ineffectiveness

claim has no arguable merit.      Atty. Colafella discussed the importance of

character testimony with Appellant on multiple occasions and asked

Appellant to identify witnesses that he could investigate for this purpose. As

Appellant refused to give him any names of possible witnesses and asked for

privacy, Appellant has not shown that counsel knew or should have known of

the identify of possible character witnesses. Thus, the PCRA court correctly

found counsel was not ineffective for failing to call character witnesses.

      Second, Appellant argues that trial counsel was ineffective in failing to

request that the trial court give a jury instruction on prior inconsistent

statements before the jury retired to deliberate. Appellant argues that such

an instruction was necessary as the victim’s testimony at trial was

inconsistent in some respects to the statements she gave to medical

examiners and law enforcement after the alleged assault.

      However, we point out that the trial court did give a limiting instruction

to the jury after the victim had finished testifying, in which the trial court

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specifically and thoroughly instructed the jury on the use of prior

inconsistent statements. Appellant concedes that fact but argues that trial

counsel should have requested that the trial court repeat this instruction

before the jury retired to deliberate. Appellant offers no specific case law to

show his claim has any arguable merit.          Moreover, Appellant fails to

establish prejudice by showing that, but for counsel’s failure to request that

the trial court give the limiting instruction a second time, the result of the

proceeding would have been different.” See Johnson, 600 Pa. at 345–46,

966 A.2d at 532–33. Thus, the PCRA court correctly found counsel was not

ineffective in failing to ask the trial court to repeat its instruction on prior

inconsistent statements.

      Third, Appellant argues that counsel was ineffective for pursuing an

unreasonable trial strategy in a sex assault case, in eliciting testimony from

the victim that she was intoxicated when the alleged assault occurred.

Appellant contends this strategy contradicted the defense theory that he had

consensual sexual relations with the victim.

      With regards to the reasonable basis prong of the ineffectiveness test,

our Supreme Court has emphasized the following:

      the PCRA court does not question whether there were other
      more logical courses of action which counsel could have
      pursued; rather, [the court] must examine whether counsel's
      decisions had any reasonable basis. Where matters of strategy
      and tactics are concerned, [a] finding that a chosen strategy
      lacked a reasonable basis is not warranted unless it can be
      concluded that an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.


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Commonwealth v. Mason, 634 Pa. 359, 388-39, 130 A.3d 601, 618

(2015) (citations and quotation marks omitted).

      Contrary to Appellant’s assertions, the victim did not testify that she

was intoxicated to the point where she could not give consent; instead, she

indicated that she was only “slightly buzzed” when she went to bed. N.T.

Trial, 9/16/13, at 44, 58.   She denied going to bed because she had too

much to drink, but rather, asserted that she needed to get up early the next

morning. Further, the victim indicated that she did not lose consciousness

due to intoxication but rather was sleeping when the alleged assault began.

      We agree with the PCRA court’s assessment that Atty. Colafella had a

reasonable basis to focus on the victim’s level of intoxication to attempt to

discredit her recollection of the events in question and to question her

credibility. Atty. Colafella testified at the PCRA hearing that his strategy was

to suggest that the victim’s alcohol consumption impaired her ability to

remember how the sexual contact was initiated but failed to rise to a level

that would render the victim incapacitated to render consent.

      The record shows that counsel’s strategy had a reasonable basis

designed to effectuate Appellant’s interests.         Appellant does not offer a

suggested   alternative   strategy   that   offered    a   potential   for   success

substantially greater than the course actually pursued. See Mason, supra.

As a result, the PCRA court did not err in denying this claim.

      Lastly, Appellant contends that trial counsel was ineffective in

“handling” the prosecution’s expert witness, Dr. Stephanie Larson, D.O., who

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performed the victim’s rape kit. Appellant’s Brief, at 6. While trial counsel

objected to Dr. Larson’s qualifications as an expert, Appellant argues that

counsel should have asked the trial court to strike Dr. Larson’s testimony or

in the alternative, to grant a continuance and require the Commonwealth to

provide an expert report from Dr. Larson to allow the defense to adequately

prepare for her testimony.

      However, Appellant has not shown there is a reasonable probability

that, but for counsel's failure to seek an expert report from Dr. Larson, the

result of the proceedings would have been different.     Although Dr. Larson

testified that many sexual assault victims do not exhibit physical signs of

injury, defense counsel elicited testimony on cross-examination in which Dr.

Larson admitted that in a more violent assault or rape that it was more likely

that the victim would exhibit physical signs of assault (e.g. vaginal tearing,

bleeding, bruising). Dr. Larson agreed with defense counsel’s statement to

the jury that it was reasonable to infer that if the assault had occurred as

violently as the victim had alleged that it was more likely that the victim

would have had visible physical injuries.    The jury reached the opposite

conclusion and convicted Appellant of sexual assault. Appellant is unable to

show how counsel’s failure to seek an expert report resulted in prejudice

under these circumstances. Accordingly, his ineffectiveness claim fails.

      For the foregoing reasons, we affirm the lower court’s order dismissing

Appellant’s PCRA petition.

      Affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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