J-S45039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

KEITH L. KAMMERDEINER,

                             Appellant                 No. 2017 WDA 2015


                 Appeal from the PCRA Order November 16, 2015
               in the Court of Common Pleas of Armstrong County
                Criminal Division at No.: CP-03-CR-0000748-2012


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                     FILED JULY 13, 2016

        Appellant,   Keith    L.   Kammerdeiner,   appeals    from   the   order   of

November 16, 2015,1 which dismissed, following a hearing, his first,

counseled petition brought under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.              On appeal, Appellant claims he received

ineffective assistance of trial counsel and alleges after-discovered evidence.

We affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The order was signed on November 13, 2015 and filed on November 16,
2015; we have amended the caption accordingly.
J-S45039-16


        We take the underlying facts and procedural history in this matter

from the PCRA court’s November 16, 2015 opinion and our independent

review of the certified record.

               On July 18, 2013, after [a] jury trial, [Appellant] was
        convicted of one count each of (1) [r]ape,[2] (2) [a]ggravated
        [i]ndecent [a]ssault,[3] (3) [a]ggravated [i]ndecent [a]ssault—
        [f]orcible [c]ompulsion,[4] (4) [t]erroristic [t]hreats,[5] (5)
        [u]nlawful    [r]estraint—[s]erious    [b]odily   [i]njury,[6]  (6)
                                                                      7
        [i]ndecent [a]ssault [w]ithout the [c]onsent of [a]nother,[ ] and
        (7) [r]isking [c]atastrophe[.8] The charges and conviction stem
        from an incident in which [Appellant] is alleged to have
        imprisoned a former girlfriend in her home and sexually
        assaulted her at knifepoint (the “incident”). [Appellant also
        sprayed her with mace and threatened her with an operable
        improvised explosive device].       After trial, the Pennsylvania
        Sexual Offenders Assessment Board conducted an evaluation of
        [Appellant], ultimately concluding that he did not qualify as a
        sexually-violent predator. On December 24, 2013, the [trial
        c]ourt sentenced [Appellant] to a term of incarceration of [not
        less than one hundred and eight] months [nor more than two
        hundred and sixteen] months on the rape charge and [not less
        than twelve] months [nor more than twenty-four] months on the
        risking catastrophe charge, the sentences to run consecutively.
        The remaining counts were either merged into the rape charge
____________________________________________


2
    18 Pa.C.S.A. § 3121(a)(2).
3
    18 Pa.C.S.A. § 2702(a)(4).
4
    18 Pa.C.S.A. § 3125(a)(2).
5
    18 Pa.C.S.A. § 2706(a)(1).
6
    18 Pa.C.S.A. § 2902(a)(1).
7
    18 Pa.C.S.A. § 3126(a)(1).
8
    18 Pa.C.S.A. § 3302(b).




                                           -2-
J-S45039-16


        or their sentences were ordered to run concurrently with the
        rape sentence. Thus, [Appellant’s] aggregate sentence is a term
        of incarceration of [not less than one hundred and twenty]
        months [nor more than two hundred and forty] months, or [ten]
        to [twenty] years.

              [Appellant] filed a post-sentence motion on October 3,
        2013.      In the motion, [Appellant] argued that the
        Commonwealth was in possession of a cellular phone[a]
        containing exculpatory evidence, namely, text messages
        between [Appellant] and the victim the day prior to the incident,
        in which the victim expressed a desire to marry [Appellant].
        [Appellant] requested a new trial based on what he essentially
        argued was a Brady[9] violation by the Commonwealth. He also
        moved to modify the sentence on the rape charge, which he
        asserted was excessive because of his “mental health status.”
        The [trial c]ourt held a hearing on November 4, 2013, and
        denied the motion by [m]emorandum and [o]rder entered
        December 18, 2013.

              [a] It is not clear whether the cellular phone at issue
              was owned by [Appellant] or the victim. It is
              undisputed, however, that [Appellant] was in
              possession of the phone after the incident and
              disposed of it along State Route 28, where he would
              later take police to recover it.

              In its [m]emorandum, the [trial c]ourt noted that if indeed
        the cellular phone contained text messages from the victim to
        [Appellant] expressing a desire to marry, those texts clearly
        would be exculpatory. In discussing the Brady claim, the [trial
        c]ourt stated as follows:

              The question is, was the alleged text from the victim
              to [Appellant] expressing a desire to marry him,
              exculpatory or impeachment evidence?

              The answer is yes. At trial, the victim testified that
              she had broken up with [Appellant] in April of 2012
              and had rebuffed [Appellant’s] subsequent attempts
____________________________________________


9
    Brady v. Maryland, 373 U.S. 83 (1963).



                                           -3-
J-S45039-16


           to get back together. The victim further testified that
           [Appellant] had forced her to engage in sexual acts
           on October 11, 2012 and that the acts were not
           consensual.

           By contrast, [Appellant] testified that the day before
           the incident, the victim had met with him and
           discussed the possibility of them getting back
           together. Most important, [Appellant] claimed that
           the victim had initiated their sexual activity on
           October 11, 2012 and that the sexual activity was
           consensual.

           The issue of whether the sexual acts were
           consensual was crucial. Thus, evidence that just
           days before, the victim had sent [Appellant] a text
           saying that she wanted to marry him clearly would
           have supported [Appellant’s] claims of innocence at
           trial regarding the charges of rape, aggravated
           indecent assault and indecent assault.

           However, in ultimately rejecting [Appellant’s] Brady claim,
     the [trial c]ourt noted that [Appellant] did not mention the text
     messages in his testimony at trial and stated at the hearing that
     he did not mention their existence to his attorney until
     sentencing.      The [trial c]ourt also concluded that the
     Commonwealth had not violated its duty to provide the text
     messages because the cellular phone was inoperable. The [trial
     c]ourt further denied [Appellant’s] request that his sentence be
     modified, finding that the sentence imposed was within the
     standard range and served both the interests of society and the
     victim.

           [Appellant] did not file a direct appeal. On October 3,
     2014, he filed a timely pro se PCRA petition, alleging ineffective
     assistance of counsel.      The [PCRA c]ourt appointed PCRA
     counsel, who filed an amended petition on April 23, 2015, and a
     second amended petition on May 27, 2015. At the hearing on
     September 16 and 17, 2015, [Appellant] testified and presented
     the testimony of his trial counsel, Attorney James H. Wray. The
     evidence is summarized as follows.

          At approximately 5:02 p.m. on October 11, 2012, the date
     of the incident, [Appellant] was admitted to the emergency

                                    -4-
J-S45039-16


     department at UPMC Mercy Hospital.         [Appellant’s] medical
     records, which appear to have been first requested on June 19,
     2015 by [Appellant’s] PCRA counsel, indicate that [Appellant]
     was diagnosed at his admission with “Altered Mental Status” with
     a principal diagnosis of “psychosis.” The treating physician
     indicates in his notes that upon examination, [Appellant] was
     “very withdrawn and somewhat tearful. He states that he does
     not know why he is here and appears to be mildly confused. He
     states that he is having racing thoughts, although he denies
     auditory hallucinations.”   The doctor goes on to note that
     [Appellant] “is not oriented to place and time” and that he
     “denies any suicidal or homicidal ideation.” The doctor also
     notes that [Appellant] appeared to be suffering from “emotional
     withdrawal.”    Ultimately, [Appellant] was admitted to the
     psychiatric emergency department for overnight observation,
     after which he was to be assessed by a psychiatrist the following
     day.

            Presumably, [Appellant] was picked up and placed under
     arrest by the police before any such assessment was performed.
     All of the drug toxicity tests performed at Mercy Hospital were
     negative.

           [Appellant] testified that he had been diagnosed with
     depression both before his trial and since, at times sustaining
     psychotic episodes. He also testified, however, that Attorney
     Wray did not know of his condition prior to and at trial. Attorney
     Wray did not request [Appellant’s] mental health records from
     Mercy Hospital and did not request that [Appellant] undergo a
     mental health evaluation prior to trial. [Appellant] also testified
     that he and Attorney Wray did not discuss his mental health
     status throughout their preparation for trial, with the exception
     of [Appellant’s] statement to Attorney Wray that he was
     “depressed.” [Appellant] does not recall whether he ever told
     Attorney Wray about his hospitalization at Mercy. [Appellant]
     did not recall when he first told Attorney Wray about the text
     messages on the cellular phone, but does remember telling him
     to try and find the phone. [Appellant] recalls discovering that
     the phone did not work.

            Attorney Wray has been practicing criminal law since 1986
     and has worked as both a public defender and an assistant
     district attorney. He also has tried criminal cases in private
     practice. Attorney Wray testified that he met with [Appellant]

                                    -5-
J-S45039-16


     approximately five times prior to trial to prepare the defense.
     During those meetings, Attorney Wray observed that [Appellant]
     was lucid and conversant and did not show any signs of being
     unable to assist in his defense. He admittedly did not request
     [Appellant’s] medical records from Mercy Hospital and testified
     that he would not have done so even if he had been aware that
     they existed, chiefly because [Appellant] appeared competent
     during all of their meetings. For similar reasons, he did not
     request a mental health evaluation. Attorney Wray testified that
     [Appellant] insisted throughout trial preparation that the sexual
     activity between him and the victim was consensual and showed
     no interest in pursuing any other type of defense.

           With regard to [Appellant’s] ability to assist in his case,
     Attorney Wray testified that [Appellant] was always able to
     contribute and did, in fact, assist in developing trial strategy.
     Although [Appellant] engaged in somewhat erratic behavior at
     his preliminary hearing, his behavior on the day of trial was
     much more outlandish and was the first indication to Attorney
     Wray that he might not be able to continue with the trial.
     [Appellant] had become ill during trial on two occasions and had
     passed out in the restroom. After the second incident, the [trial
     c]ourt asked [Appellant] whether he could continue, and
     [Appellant] stated that he was able to finish. Attorney Wray
     stated to the [trial c]ourt that he was not confident that
     [Appellant] was able to participate effectively in the trial given
     his behavior and moved for a mistrial.          The [trial c]ourt
     permitted the trial to proceed, relying on [Appellant’s] own
     statements that he was suffering only from anxiety. After trial,
     but prior to sentencing, [Appellant] met with a probation officer
     to provide information for [Appellant’s pre-sentence investigation
     report (“PSI”). The probation officer noted that conversing with
     [Appellant] was difficult because of what he perceived to be
     mental health issues.[b]

           [b] The PSI report was not made part of the record
           at the PCRA hearing. The [PCRA c]ourt is aware of
           the probation officer’s comments only because PCRA
           counsel alluded to the comments during the hearing.

          With regard to the cellular phone text messages, Attorney
     Wray testified that [Appellant] did not make him aware of the
     messages until either very close to or at trial. The phone had
     been listed in the inventory provided to Attorney Wray in

                                   -6-
J-S45039-16


     discovery, but he at that point did not have any knowledge as to
     its contents. When Attorney Wray inquired about the phone with
     the Pennsylvania State Police (“PSP”) , Trooper Michael Kapustik
     told him that the phone was inoperable. At trial, [Appellant] did
     not mention the messages in his testimony and referred to the
     day before the incident only in passing. Attorney Wray raised
     the issue of the text messages in his post-sentence motion, but
     at that point, the phone remained inoperable and the messages
     were not recovered.

           After [Appellant] filed his PCRA petition, his PCRA counsel
     contacted the PSP and again inquired about the phone. The PSP
     reiterated that the phone was inoperable and they were not able
     to retrieve any of its contents. Counsel then traveled to the PSP
     barracks to investigate. When she arrived, the PSP had plugged
     the phone into a charger and it became functional. A transcript
     of the text messages were then sent to PCRA counsel.

            The messages introduced at the PCRA hearing begin the
     morning of October 10, 2012, and continue through the evening.
     There is a single text message the afternoon of October 11,
     2012, after the incident had occurred. The messages all are
     between [Appellant] and the victim and cover various subjects,
     including arrangements for breakfast and long discussions about
     their prior relationship and sexual activities. The messages
     generally are friendly and bantering in nature, but at times they
     also grow quite tense. The victim tells [Appellant] that she
     would let him live on her property and that she loves him. She
     also refers to an “ass grab” at their breakfast meeting. The
     remaining messages largely are composed of [Appellant’s]
     solicitations of sex, which the victim consistently rebuffs. At one
     point, the victim tells [Appellant] that she will live with him and
     marry him if he can answer a particular question, which appears
     to be related to why the victim still wears certain gifts that
     [Appellant] gave to her. The last message in the thread was
     sent by [Appellant] at 2:52 p.m. on October 11, 2012, in which
     he states, “Goodbye guess u really didn’t care if I die.”

(PCRA Court Opinion, 11/16/15, at 1-9) (record citations omitted).

     On November 16, 2015, the PCRA court denied Appellant’s petition.

The instant, timely appeal followed. On December 21, 2015, the PCRA court


                                    -7-
J-S45039-16


ordered Appellant to file a concise statement of errors complained of on

appeal.    See Pa.R.A.P. 1925(b).     Appellant filed a timely Rule 1925(b)

statement on January 8, 2016.      See id.   On January 26, 2016, the PCRA

court issued a memorandum adopting its earlier opinion.           See Pa.R.A.P.

1925(a).

      On appeal, Appellant raises the following questions for our review:

            I.     Whether the denial of Appellant’s second amended
            petition for post-conviction collateral relief was in error
            when the PC[RA] court found the trial attorney effective?

            II.    Whether the denial of a new trial asked for in
            Appellant’s second amended petition for post-conviction
            collateral relief based on after discovered exculpatory
            evidence was in error?

(Appellant’s Brief, at 2) (unnecessary capitalization omitted).

      Here, Appellant claims that the PCRA court erred in denying his PCRA

petition. It is long settled that “[o]ur standard of review from the grant or

denial of post-conviction relief is limited to examining whether the PCRA

court’s determination is supported by the evidence of record and whether it

is free of legal error. We will not disturb findings that are supported by the

record.”   Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.

2011), appeal denied, 30 A.3d 487 (Pa. 2011) (citations omitted).           “The

court’s scope of review is limited to the findings of the PCRA court and the

evidence on the record of the PCRA court’s hearing, viewed in the light most

favorable to the prevailing party.”   Commonwealth v. Duffey, 889 A.2d

56, 61 (Pa. 2005) (citation omitted).        Further, to be eligible for relief

                                      -8-
J-S45039-16


pursuant to the PCRA, Appellant must establish that his conviction or

sentence resulted from one or more of the enumerated errors or defects

found in Section § 9543(a)(2). He must also establish that the issues raised

in the PCRA petition have not been previously litigated or waived. See 42

Pa.C.S.A. § 9543(a)(3).    An allegation of error “is waived if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”            42

Pa.C.S.A. § 9544(b).

      Appellant first alleges that he received ineffective assistance of trial

counsel.   (See Appellant’s Brief, at 7-10).    Specifically, in his first issue

Appellant contends that trial counsel was ineffective for not obtaining

information regarding his mental health status and for not undertaking a

more thorough investigation of the cell phone. (See id.). We disagree.

      Counsel is presumed effective, and an appellant bears the burden to

prove otherwise.   See Commonwealth v. McDermitt, 66 A.3d 810, 813

(Pa. Super. 2013). The test for ineffective assistance of counsel is the same

under both the Federal and Pennsylvania Constitutions. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Commonwealth v. Jones, 815

A.2d 598, 611 (Pa. 2002).     An appellant must demonstrate that:       (1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and (3) but for counsel’s ineffectiveness, there is a


                                     -9-
J-S45039-16


reasonable probability that the outcome of the proceedings would have been

different. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001),

abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002). “A failure to satisfy any prong of the test for ineffectiveness will

require rejection of the claim.” Jones, supra at 611 (citation omitted).

      Here, Appellant argues that counsel either knew or should have known

that he “clearly had mental health issues.”      (Appellant’s Brief at 7).   He

further claims that, had counsel investigated his mental health history, he

could have raised a viable mental health defense and been found not guilty

by reason of insanity. (See id. at 8). We disagree.

      Initially we note that in order to be found not guilty by reason of

insanity, a defendant must prove:

      that, at the time of the commission of the offense, the actor was
      laboring under such a defect of reason, from disease of the
      mind, as not to know the nature and quality of the act he was
      doing or, if the actor did know the quality of the act, that he did
      not know that what he was doing was wrong.

18 Pa.C.S.A. § 315(b).     Further, when the defendant does not present a

defense of insanity, he cannot present evidence in support of finding him

guilty but mentally ill. See Commonwealth v. Henry, 569 A.2d 929, 935-

36 (Pa. 1990), cert. denied, 499 U.S. 931 (1991), abrogated on other

grounds by Commonwealth v. Wilson, 861 A.2d 919, 933 (Pa. 2004);

Commonwealth v. Sasse, 921 A.2d 1229, 1238 n.6 (Pa. Super. 2007),

appeal denied, 938 A.2d 1052 (Pa. 2007).


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J-S45039-16


     In the instant matter, as discussed by the PCRA court in its opinion,

counsel suggested presenting an insanity defense, but Appellant refused to

consider it because he wanted to claim that the sex was consensual. (See

PCRA Ct. Op., at 6-7; see also N.T. PCRA Hearing, 9/16-17/15, at 30-31,

46-47). Our Supreme Court has found that counsel was not ineffective for

not overriding the client’s wishes in order to present an insanity defense.

See Commonwealth v. Cross, 634 A.2d 173, 175 (Pa. 1993), cert. denied,

513 U.S. 833 (1994),   In Cross, the Pennsylvania Supreme Court stated:

     . . . To plead the defense of insanity suggests that the defendant
     committed the act, but was not legally culpable. Here, appellant
     maintained that he had not committed the murders. Therefore,
     it would have been improper for his attorneys to introduce any
     evidence of insanity.

                                   *      *   *

           Both the [Pennsylvania Rules of Professional Conduct] and
     the Comment [to it] make clear that the client is to decide the
     goal of counsel’s representation. Moreover, the Rule does not
     furnish counsel with the right to override what the client
     considers to be in his best interest. This is particularly true
     where it has been determined that the client is competent to
     stand trial.

           To be competent for trial a defendant must be capable of
     understanding the nature and objective of proceedings against
     him, and be able to cooperate with his legal representative in
     presentation of his defense. A determination of competency to
     stand trial would support a determination that appellant was
     equipped    with    the     same    “lucidity” required    under
     [Commonwealth v.] Mizell [,425 A.2d 424, 426 (Pa. 1981)].
     Hence, appellant was mentally capable of making decisions
     about his defense, and counsel properly complied with his wishes
     regarding the goals of his representation.

Id. at 175-76 (some citations omitted).

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J-S45039-16


      Here, as discussed above, the uncontradicted evidence at the PCRA

hearing demonstrated that Appellant did not want to consider an insanity

defense because he wanted to argue consent.         (See N.T. PCRA Hearing,

11/16/15, at 30-31, 46-47).        We will not find counsel ineffective for

declining to override the client’s express wishes to pursue the defense of

consent rather than an insanity defense in the absence of evidence that

Appellant was incompetent to stand trial, which is not present in the instant

matter. See Cross, supra at 175-76.

      Moreover, even if Appellant had not foreclosed the possibility of a

mental health defense, we note that the record is singularly devoid of any

evidence that supports Appellant’s claim that he had long-term, on-going

mental health issues prior to the date of the incident. Appellant has failed to

produce   any   psychiatric   or   psychological   records,   prescriptions   for

psychotropic medication, or any testimony from a mental health professional

in support of his self-serving claim that he had been previously diagnosed

with “[m]ajor depression with psychotic episodes.”       (N.T. PCRA Hearing,

9/16-17/15, at 12). Further, Appellant admitted that he had not informed

counsel of any mental health problems, other than stating he felt

“depressed”, and counsel testified that he had not observed any behavior

during his meetings with Appellant that would have alerted him to any

mental health problems. (See id. at 21; see id. at 12, 30, 46). Also, the

sole documentary evidence in support of Appellant’s claim, the medical


                                     - 12 -
J-S45039-16


records from the Mercy Hospital Psychiatric Unit,10 demonstrate, at most,

that, in the hours after the incident, Appellant exhibited a sufficiently altered

mental health status for an emergency room doctor to admit him for

observation and a psychiatric evaluation, which evidently did not occur.

(See Appellant’s PCRA Exhibit B, UPMC Emergency Room Evaluation,

10/11/12, at 2, 8-9). Lastly, Appellant’s claims of bizarre behavior at trial,

(see Appellant’s Brief, at 7), are simply not supported by the record. While

the record shows that Appellant became physically ill during trial, eventually

fainting, (see N.T. Trial, 7/18/13, at 30, 49-54), he attributed his physical

condition to nervousness. (See id. at 52). When questioned by the court,

Appellant unequivocally stated that he wanted the trial to proceed that day.

(See id.).       There is nothing in the record that supports Appellant’s

contention that his behavior at trial in any way reflected on-going mental


____________________________________________


10
     Appellant also contends that the report of his interview with the
Pennsylvania State Police and the PSI support his contention of serious
mental health problems. (See Appellant’s Brief, at 7). However, as the
PCRA Court noted, neither document was entered into evidence at the PCRA
hearing. (See PCRA Ct. Op., at 8 n.2, 15 n.4). Thus, they are not included
in the certified record. While Appellant has appended these documents to
his brief, this Court has consistently stated that copying material and
attaching it to the brief does not make it a part of the certified record. See
First Union Nat. Bank v. F.A. Realty Investors Corp., 812 A.2d 719, 724
n.3 (Pa. Super. 2002); In re M.T., 607 A.2d 271, 275 (Pa. Super. 1992).
Appellant is referred to Pa.R.A.P. 1926, which delineates the proper method
for supplementing the record and we will disregard the PSI and Pennsylvania
State Police Reports attached to Appellant’s brief.




                                          - 13 -
J-S45039-16


health issues.11      Appellant’s contention that counsel was ineffective for

failing to investigate a meritorious mental health defense is without merit,

because Appellant has not shown he had on-going mental health problems.

See Jones, supra at 611.

       Appellant also contends that counsel was ineffective for not conducting

a more thorough investigation into the cell phone. (See Appellant’s Brief, at

10). We disagree, as the PCRA court stated:

             “Counsel has a general duty to undertake reasonable
       investigations or make reasonable decisions that render
       particular investigations unnecessary.” Commonwealth v.
       Basemore, 744 A.2d 717, 735 (Pa. 2000).                “Counsel’s
       unreasonable failure to prepare for trial is an abdication of the
       minimum      performance   required     of    defense   counsel.”
       Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003)
       (quoting Commonwealth v. Perry, 644 A.2d 705, 709 (Pa.
       1994)).     The reasonableness of a particular investigation
       “depends upon evidence known to counsel, as well as evidence
       that would cause a reasonable attorney to conduct a further
       investigation.” Commonwealth v. Hughes, 865 A.2d 761 (Pa.
       2004).

             [Appellant] argues that Attorney Wray was ineffective
       because he failed to further request the production of the text
       messages in the possession of the PSP, which he argues are
       exculpatory. Had Attorney Wray obtained the text messages
       prior to trial, [Appellant] contends, the outcome of the trial
       “most certainly would have been different.” We disagree.

            As to arguable merit, there is no indication that Attorney
       Wray, upon further investigation, would have been able to obtain
____________________________________________


11
  During the PCRA hearing, Attorney Wray testified that Appellant behaved
oddly during trial. (See N.T. PCRA Hearing, 9/16-17/15, at 36-37, 48-49).
However, Attorney Wray never details the behavior he is referring to and,
again, there is nothing in the trial transcript which supports this contention.



                                          - 14 -
J-S45039-16


       the text messages from the cellular phone. When [Appellant]
       told Attorney Wray of the messages’ existence, he immediately
       asked [Pennsylvania State] Trooper Kapustik[12] whether they
       could be retrieved. Trooper Kapustik advised that the cellular
       phone was inoperable and its contents not retrievable, as had
       been the case since the phone was retrieved days after the
       incident. Although the PSP later were able to retrieve the
       contents of the phone upon request by [Appellant’s] PCRA
       counsel, there is no evidence that any further efforts by Attorney
       Wray would have produced the same results, particularly given
       the timing of [Appellant’s] statements about the texts.
       [Appellant] told Attorney Wray about the text message
       conversation either immediately prior to or at trial. Given time
       limitations and the statements from the PSP, Attorney Wray
       adequately investigated, to no avail, the possibility that the
       messages existed and were in fact exculpatory.

              For the same reason, we also conclude that Attorney Wray
       had a reasonable basis for not traveling to the PSP barracks and
       attempting to turn the phone on himself, particularly given the
       imminence of trial. [Appellant] does not assert that the PSP or
       the Commonwealth intentionally withheld the messages from
       Attorney Wray or were disingenuous about the phone’s
       inoperable state. There simply were no indications to Attorney
       Wray that the messages could be retrieved for use at trial.
       Without more, [Appellant] has not carried his burden to show
       that Attorney Wray had no reasonable basis for his actions in
       this regard.

             Third, we also conclude that [Appellant] was not
       prejudiced by Attorney Wray’s failure to obtain the messages.
       Th[e trial c]ourt did conclude previously that a message from the
       victim indicating a desire to marry [Appellant] would be
       exculpatory because it would bear significantly on the issue of
       the consensual nature of the sexual activity between the two on
       the day of the incident. However, neither the [the trial c]ourt
       nor Attorney Wray knew of the messages’ content at the time
       the post-sentence motion was filed. Nor did [Appellant] testify
____________________________________________


12
  The record does not show Trooper Kapustik’s first name; his last name is
spelled as “Kapustic,” in the PCRA hearing transcript. (N.T. PCRA Hearing,
9/16-17/15, at 45).



                                          - 15 -
J-S45039-16


     at trial with any specificity about the nature of the conversation
     between him and the victim the day before the incident. Thus,
     the [the trial c]ourt’s conclusion that the content of the
     messages would be exculpatory was based on the [c]ourt’s
     understanding that the victim expressed a genuine desire to
     marry [Appellant]. A close review of the text messages indicates
     that that was not the case.

             The text messages span a period of several hours the day
     prior to the incident. [Appellant] and the victim discuss where
     they will meet for breakfast, the history of their relationship, and
     their current life situations. There is no doubt that the messages
     at times contain no small degree of sexual innuendo and outright
     solicitation by [Appellant]. However, the victim consistently
     rejects [Appellant’s] requests and makes no indication that she
     desires to have sex with him. With regard to her statements
     regarding marriage, they were made by the victim in explaining
     why the parties’ relationship ultimately ended. Taken in their
     appropriate context, and given the generally sarcastic nature of
     the victim’s statements throughout the conversation, [the PCRA
     court does] not believe that the victim’s statement that she
     would marry [Appellant] carried with it enough sincerity to lend
     any credibility to [Appellant’s] consent defense. For that reason,
     [the PCRA court does] not believe that the text messages would
     have resulted in a different outcome at trial, particularly given
     the strength of the victim’s testimony and the circumstantial
     evidence of the nonconsensual nature of the sex. [Appellant]
     thus has failed to establish the requisite prejudice to warrant
     relief.

(PCRA Ct. Op., at 17-20). Our review of the record with respect to this issue

shows that the PCRA court’s determination is supported by the evidence and

is free of legal error, thus, there is no basis to disturb it.   See Ousley,

supra at 1242.

     In his final claim, Appellant argues that the trial court erred in finding

that the text messages did not constitute after-discovered exculpatory

evidence pursuant to 42 Pa.C.S.A. § 9543.      (See Appellant’s Brief, at 10-

13). We disagree.

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      Pursuant to the PCRA, an appellant may be eligible for relief based

upon after-discovered evidence only if he pleads and proves that his

conviction or sentence was the result of “[t]he unavailability at the time of

trial of exculpatory evidence that has subsequently become available and

would have changed the outcome of the trial if it had been introduced.” 42

Pa.C.S.A. § 9543(a)(2)(vi). Therefore, in order to obtain relief based upon

subsection 9543(a)(2)(vi), an appellant must establish that: (1) the

evidence has been discovered after trial and it could not have been obtained

at or prior to trial through reasonable diligence; (2) the evidence is not

cumulative; (3) it is not being used solely to impeach credibility; and (4) it

would likely compel a different verdict. See Commonwealth v. D'Amato,

856 A.2d 806, 823 (Pa. 2004). “The test is conjunctive; the defendant must

show by a preponderance of the evidence that each of these factors has

been met in order for a new trial to be warranted.” Commonwealth v.

Padillas, 997 A.2d 356, 363 (Pa. Super. 2010), appeal denied, 14 A.3d 826

(Pa. 2010) (citations omitted).

      Here, Appellant has not shown that the evidence is newly discovered.

The text exchange in question took place the day before the incident; the

only parties to the exchange were Appellant and the victim. (See N.T. PCRA

Hearing, 9/16-17/15, at 21). Thus, Appellant was aware of the exchange as

of that date.   Further, Appellant took the police to the location where he

discarded the cell phone, thus he was aware that the cell phone was in


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police possession. (See id. at 24). Therefore, well before trial, Appellant

knew that he had engaged in a text exchange with the victim.        While he

might not have been able to quote the exact texts, he was aware of the

specifics of the exchange, and he knew the phone was in the possession of

the police.   Despite this, he elected not to inform trial counsel, who had

represented him since the preliminary hearing, of any of this until either the

day before, or the morning of trial. (See id. at 32, 38-39). By that point, it

was too late for counsel to do any type of detailed investigation regarding

the cell phone.

      With respect to after-discovered evidence, this Court has stated:

      A defendant may unearth information that the party with the
      burden of proof is not required to uncover, so long as such
      diligence in investigation does not exceed what is reasonably
      expected. Thus, a defendant has a duty to bring forth any
      relevant evidence in his behalf. A defendant cannot claim he has
      discovered new evidence simply because he had not been
      expressly told of that evidence. Likewise, a defendant who fails
      to question or investigate an obvious, available source of
      information, cannot later claim evidence from that source
      constitutes newly discovered evidence.            The concept of
      reasonable diligence is particularly relevant where the defendant
      fails to investigate or question a potential witness with whom he
      has a close, amicable relationship.           Absent a plausible
      explanation for the failure to discover the evidence earlier,
      evidence obtained after trial should not be deemed after-
      discovered; to allow the defendant to claim information actually
      or constructively within his knowledge and available to him is
      after-discovered.

Padillas, supra at 363-64 (citations and quotation marks omitted). Here,

Appellant chose not to inform counsel about an easily investigated source of

allegedly exculpatory information. Therefore, he did not exercise reasonable

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diligence in investigating it. His newly discovered evidence claim, therefore,

must fail. See id. at 366-67 (finding trial court erred in granting new trial

based on after-discovered evidence where defendant lived with potential

exculpatory witness throughout period in question, knew of his possible

involvement in drug deal at issue, but chose not to question him about it at

trial).

          Moreover, as discussed above, we have reviewed the text messages in

question and agree with the PCRA court that:

          [t]aken in their appropriate context, and given the generally
          sarcastic nature of the victim’s statements throughout the
          conversation, [the PCRA court does] not believe that the victim’s
          statement that she would marry [Appellant] carried with it
          enough sincerity to lend any credibility to [Appellant’s] consent
          defense. For that reason, [the PCRA court does] not believe that
          the text messages would have resulted in a different outcome at
          trial, particularly given the strength of the victim’s testimony and
          the circumstantial evidence of the nonconsensual nature of the
          sex.

(PCRA Ct. Op., at 20).           Thus, the messages are not exculpatory and

Appellant has not demonstrated that the result of the trial would have been

different, thus his claim also fails on this basis.      See D'Amato, supra at

823.

          Further, we also agree with the PCRA court that:

                 The text messages do not contain any statements from
          either [Appellant] or the victim [ ] regarding their sexual
          encounter on the day of the incident. Thus, they do not contain
          any substantive evidence of consent. The messages would be
          introduced at trial primarily, if not exclusively, to impeach the
          victim’s testimony that the sex was forced. If the messages
          have any value it all, it would be to offer the jury some insight

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         with regard to the nature of the parties’ relationship immediately
         prior to the incident, which at best would tend only to contradict
         the victim’s version of what happened. For that reason, [the
         PCRA court] find[s] that the text messages’ content, even if
         relevant, would only serve to impeach the victim’s testimony. . .
         .

(PCRA Ct. Op., at 24). Thus, Appellant has not shown that the evidence is

not being used solely to impeach credibility and his claim must fail on this

basis as well. See D'Amato, supra at 823.

         Accordingly, for the reasons discussed above we find that PCRA court’s

determination is supported by the evidence of record and is free of legal

error.    See Ousley, supra at 1242.            Therefore, we affirm the denial of

Appellant’s PCRA petition.

         Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




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