J-S67034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

GARY EUGENE SEGRAVES,

                            Appellee                  No. 181 MDA 2015


                 Appeal from the PCRA Order January 21, 2015
               in the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0000548-2009


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 16, 2016

        The Commonwealth of Pennsylvania appeals from the order granting

the petition filed by Appellee, Gary Eugene Segraves, pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and awarding him

a new trial.     On appeal, the Commonwealth challenges the PCRA court’s

determination that trial counsel was ineffective for failing to present the

testimony of a certain witness during Appellee’s second trial. Specifically, it

argues that Appellee failed to establish prejudice. After careful review, we

agree with the Commonwealth, and reverse the order of the PCRA court.

        We take the relevant facts and procedural history of this case from our

independent review of the certified record, including the trial/PCRA court’s

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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December 13, 2011, January 21, 2015, and June 2, 2015 opinions.            On

March 12, 2009, Appellee was charged with twelve counts of rape of a child

less than thirteen years of age,1 endangering the welfare of a child,2 and a

multitude of other related offenses arising from the sexual abuse of his

stepdaughter, B.H. (See Trial Court Opinion, 12/13/11, at 1). The abuse

occurred over a two-year period, from approximately January 2006 until

January 2008, while B.H. was between the ages of eleven and thirteen years

old. (See id.). Appellee’s wife and B.H.’s mother, M.S., was charged with

corruption of a minor and endangering the welfare of a child in connection

with the abuse, for failing to take measures to protect B.H. from Appellee

after she learned of the allegations. (See PCRA Court Opinion, 6/02/15, at

1).

        On August 31, 2010, Appellee and M.S. proceeded to a jury trial as co-

defendants.      (See Trial Ct. Op., 12/13/11, at 1).   The jury found both

parents guilty of endangering the welfare of child, but was unable to reach a

unanimous verdict on the remaining charges. (See PCRA Ct. Op., 6/02/15,

at 1).    The trial court granted a mistrial with respect to the remaining

charges. (See id.).




____________________________________________


1
    18 Pa.C.S.A. § 3121(c).
2
    18 Pa.C.S.A. § 4304(a)(1).



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       A second jury trial was held on January 19-21, 2011.3 (See Trial Ct.

Op., 12/13/11, at 1). After jury selection, but before the trial commenced,

the Commonwealth nol prossed the remaining corruption of a minor charge

against M.S.; therefore, only Appellee proceeded to trial.      (See PCRA Ct.

Op., 6/02/15, at 1-2). Appellee’s defense centered on the theory that B.H.

fabricated the rape allegations because she wanted to be removed from his

home, and move into the home of her biological father.         (See N.T. Trial,

1/19/11, at 91-92, 101-02; PCRA Ct. Op., 1/21/15, at 4). At the conclusion

of trial, the jury found Appellee guilty of twelve counts of rape of a child less

than thirteen years of age; six counts of rape by forcible compulsion; three

counts of involuntary deviate sexual intercourse; seven counts of aggravated

indecent assault of a child; one count of unlawful contact with a minor;

eighteen counts of statutory sexual assault; one count of corruption of a

minor; and twenty-five counts of indecent assault.         (See Trial Ct. Op.,

12/13/11, at 1-2).

       On June 30, 2011, the trial court held a sentencing hearing at which it

stated that the evidence of Appellee’s guilt was “overwhelming” and noted

as significant the:

       undisputed [medical expert] testimony that [B.H.] had suffered a
       penetrating wound to her hymen [and] that this could only have
       happened the way she alleged it to happen. It couldn’t have
____________________________________________


3
 B.H. was sixteen years old at the time of the second trial. (See N.T. Trial,
1/19/11, at 42).



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       happened through any other way.          There wasn’t contrary
       medical evidence, there wasn’t contrary evidence of her
       undergoing some sort of massive injury that would have caused
       it. There wasn’t even contrary evidence that she would have
       been engaged in an activity that might have caused it. . . .

(N.T. Sentencing, 6/30/11, at 64-65).            The court designated Appellee a

sexually violent predator (SVP), and sentenced him to an aggregate term of

not less than seventy-one nor more than 142 years’ incarceration, followed

by five years’ probation.         (See id. at 34; see also Sentencing Order,

6/30/11, at unnumbered page 4).

       Appellee filed a direct appeal, and this Court affirmed the judgment of

sentence on December 20, 2012. (See Commonwealth v. Segraves, 64

A.3d 29 (Pa. Super. 2012) (unpublished judgment order)).           Our Supreme

Court denied Appellee’s petition for allowance of appeal on October 23,

2013. (See Commonwealth v. Segraves, 77 A.3d 1260 (Pa. 2013)). The

United State Supreme Court denied his petition for writ of certiorari on April

7, 2014. (See Segraves v. Pennsylvania, 134 S.Ct. 1793 (2014)).

       On March 12, 2014, Appellee filed the instant PCRA petition. 4 On June

26, 2014, appointed counsel filed an amended petition claiming that Kyle
____________________________________________


4
  Appellee filed his PCRA petition while his direct appeal was pending before
the United States Supreme Court and, thus, the petition was premature.
See Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000)
(noting “[a] PCRA petition may only be filed after [a petitioner] has waived
or exhausted his direct appeal rights”) (citation and emphasis omitted).
Nevertheless, because the PCRA court did not act on the petition, other than
to appoint counsel, until after Appellee’s direct appeal terminated, we
decline to vacate the PCRA court’s order on this basis. Cf. id. at 986
(vacating order and remanding for further proceedings where PCRA court
(Footnote Continued Next Page)


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Rude, Esq., Appellee’s counsel during both trials, was ineffective for failing to

call B.H.’s childhood friend, M.M., as a witness during the second trial. (See

Amended      PCRA      Petition,   6/26/14, at    unnumbered   pages   3-4,   7-8).

Specifically, at Appellee’s first trial, B.H. testified that she told M.M. about

the sexual abuse.         (See PCRA Ct. Op., 1/21/15, at 2).      After the trial,

however, M.S.’s attorney, Gregory Scott Gardner, Esq., interviewed and

subpoenaed M.M., and she indicated that B.H. did not tell her about the

abuse. (See Witness Certification of Gardner, 6/26/14, at 1 ¶¶ 3, 5). At

Appellee’s second trial, B.H. testified that when she was approximately

eleven years old, while riding on the school bus, she told M.M. that Appellee

was molesting her. (See N.T. Trial, 1/19/11, at 50-51, 87). Neither Rude

nor the Commonwealth called M.M. to testify as a witness during the second

trial.

         On December 9, 2014, the PCRA court held a hearing at which

Gardner, Rude, and M.M.5 testified. Gardner explained that, in preparation

for the second trial, he and Rude discussed strategies and split up work with

respect to defense witnesses.           (See N.T. PCRA Hearing, 12/09/14, at 7).

When the remaining charge against M.S. was nol prossed, he advised Rude


                       _______________________
(Footnote Continued)

improperly proceeded on merits of petition during the pendency of direct
appeal).
5
 M.M. was twenty years old at the time of the PCRA hearing.            (See N.T.
PCRA Hearing, 12/09/14, at 28).



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that M.M. was under subpoena and that he should call her as a witness.

(See id. at 6-7).        Rude testified that he recalled discussing M.M. as a

potential witness with Gardner; that he believed M.M.’s testimony would be

significant to undermine B.H.’s credibility; and that he made a mistake in not

calling her as a witness. (See id. at 16, 18-21). M.M. testified consistent

with her prior interview that she was friends with B.H. during elementary

and middle school, and that B.H. did not tell her about the abuse. (See id.

at 28-30, 32). She also acknowledged that the school bus tended to be very

noisy with children carrying on multiple conversations at the same time, and

that it is possible that B.H. said something to her that she did not hear.

(See id. at 33-34).

       On January 21, 2015, the PCRA court entered its opinion and order

granting Appellee’s PCRA petition and awarding him a new trial on all

charges, except the endangering the welfare of a child charge, which he was

convicted of at the first trial.       (See Order, 1/21/15).   This timely appeal

followed.6

       The Commonwealth raises the following issue for our review: “Did the

[PCRA court] err in finding trial counsel was ineffective for failure to present

the testimony of a witness at trial and that by failing to call the witness
____________________________________________


6
  Pursuant to the PCRA court’s order, the Commonwealth filed a timely
concise statement of errors complained of on appeal on February 13, 2015.
See Pa.R.A.P. 1925(b). The court entered an opinion on June 2, 2015. See
Pa.R.A.P. 1925(a).



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[Appellee] was prejudiced[?]” (Commonwealth’s Brief, at 7). It argues that

M.M.’s testimony was not necessary to avoid prejudice to Appellee, and that

there is no reasonable probability that the outcome of the trial would have

been different if M.M. had testified. (See id. at 11). We agree.

     “Our standard of review of the PCRA court’s grant of relief is clear: we

examine whether the court’s findings are supported by the record and

whether its conclusions of law are free from legal error.” Commonwealth

v. Williams, 105 A.3d 1234, 1239 (Pa. 2014), cert. granted sub nom.

Williams v. Pennsylvania, 136 S.Ct. 28 (2015) (citation omitted).         In

order to be eligible for PCRA relief, a petitioner must plead and prove by a

preponderance of the evidence that his conviction or sentence arose from

one or more of the errors listed at Section 9543(a)(2) of the PCRA. See 42

Pa.C.S.A. § 9543(a)(2).     These errors include ineffective assistance of

counsel. See id. at § 9543(a)(2)(ii).

     We begin by noting that the law presumes that counsel has rendered

effective assistance. See Commonwealth v. Harris, 852 A.2d 1168, 1173

(Pa. 2004).

           In order to obtain relief under the PCRA premised upon a
     claim that counsel was ineffective, a petitioner must establish
     beyond a preponderance of the evidence that counsel’s
     ineffectiveness “so undermined the truth-determining process
     that no reliable adjudication of guilt or innocence could have
     taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering
     such a claim, courts presume that counsel was effective, and
     place upon the [petitioner] the burden of proving otherwise.
     Counsel cannot be found ineffective for failure to assert a
     baseless claim.


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            To succeed on a claim that counsel was ineffective, [the
     petitioner] must demonstrate that: (1) the claim is of arguable
     merit; (2) counsel had no reasonable strategic basis for his or
     her action or inaction; and (3) counsel’s ineffectiveness
     prejudiced him.

            Furthermore:

                  [t]o demonstrate prejudice, [the petitioner]
            must show there is a reasonable probability that, but
            for counsel’s error, the outcome of the proceeding
            would have been different. When it is clear the party
            asserting an ineffectiveness claim has failed to meet
            the prejudice prong of the ineffectiveness test, the
            claim may be dismissed on that basis alone[.]

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (case

citations and some quotation marks omitted).       “Failure to establish any

prong of the test will defeat an ineffectiveness claim.” Commonwealth v.

Birdsong, 24 A.3d 319, 329 (Pa. 2011) (citations omitted).

            Where a claim is made of counsel’s ineffectiveness for
     failing to call witnesses, it is the [petitioner’s] burden to show
     that the witness existed and was available; counsel was aware
     of, or had a duty to know of the witness; the witness was willing
     and able to appear; and the proposed testimony was necessary
     in order to avoid prejudice to the [petitioner].

Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (citation

omitted).

     Here, the testimony at the PCRA hearing established that the issue of

M.M. as a useful defense witness has arguable merit, and that Rude

conceded he lacked a reasonable strategic basis for not calling her.      (See

N.T. PCRA Hearing, at 5-6, 16, 18, 20); see also Michaud, supra at 867.

It is also apparent from the record that M.M. existed and was available to

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testify, that Rude was aware of her as a potential witness, and that she was

willing and able to appear. (See N.T. PCRA Hearing, at 6-7, 16, 30); see

also Chmiel, supra at 1143.        Accordingly, we must determine whether

M.M.’s testimony was necessary in order to avoid prejudice to Appellee. See

Chmiel, supra at 1143; Michaud, supra at 867. After review, we conclude

that her testimony was not necessary to avoid prejudice, and that the

Commonwealth’s issue on appeal merits relief.

      First, the record reflects that the Commonwealth presented compelling

evidence of Appellee’s guilt. Specifically, B.H. testified extensively regarding

Appellee’s sexual abuse over a two-year period beginning when she was

eleven years old, which progressed from rubbing against her to sexual

intercourse, with the duration of the episodes increasing over time.      (See

N.T. Trial, 1/19/11, at 42-45, 58-59). Appellee had sexual intercourse with

her two to three times per month and performed oral sex on her on four or

five occasions. (See id. at 48-49). Appellee permitted B.H. to participate in

social activities with her friends only if she cooperated with him sexually;

otherwise, he did not allow her to leave the home. (See id. at 47-48, 68-

69). He separated B.H. from her siblings and called her disparaging names

in their presence if she refused to cooperate, and he waited until other

family members were asleep or out of the home to abuse her sexually. (See

id. at 47-50). Appellee continued to have sexual intercourse with her until

she told her math teacher about the abuse, and her teacher notified the

authorities. (See id. at 42, 48, 50, 66, 113).

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      B.H.’s testimony was corroborated by that of Dr. Kathleen Lewis, an

expert in the field of child sexual assault physical examination. (See id. at

188-89). Dr. Lewis testified that she examined B.H. in February 2008, when

B.H. was thirteen years old, and observed that she had sustained a

significant vaginal injury consistent with someone having penetrating

intercourse with her. (See id. at 193, 198-200, 211). Dr. Lewis opined that

this injury was attributable to the sexual abuse because B.H. had “no history

in the past of [] falling on a pipe that went up into her . . . [or] [o]f her

having been in any kind of a significant automobile accident where she may

have had a crush injury to the pelvis that may have caused the tear.” (Id.

at 199-200). At sentencing, the trial court emphasized the significance of

Dr. Lewis’s testimony regarding B.H.’s physical injury, and described the

evidence of Appellee’s guilt as “overwhelming.” (N.T. Sentencing, 6/30/11,

at 65; see id. at 64). The record therefore reflects that the Commonwealth

presented ample evidence of Appellee’s guilt.

      Second, M.M.’s proffered testimony that B.H. did not tell her about the

abuse would have been used by the defense at trial solely to impeach B.H’s

credibility.   (See N.T. PCRA Hearing, at 16, 19-20).          However, Rude

acknowledged that he used other means of impeaching B.H.’s credibility, by

presenting evidence of her motive for fabricating the allegations and pointing

out inconsistencies in her testimony.   (See id. at 19, 21).    At trial, Rude

cross-examined B.H. at length regarding the restrictions at M.S.’s house, the

fact that she was routinely getting into trouble at school, her desire to live

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with her biological father, and her delay in reporting the abuse to her father

or anyone else.       (See N.T Trial, 1/19/11, at 81, 84-88, 90-97, 99-109).

Although Rude neglected to call M.M. as a witness, he did point out to the

jury during closing argument that M.M. had never testified in support of B.H.

(See PCRA Ct. Op., 1/21/15, at 7; Commonwealth’s Brief, at 10, 15;

Appellee’s Brief, at 7-9, 14).7       Additionally, the trial court gave the jury a

failure to make prompt complaint charge, instructing that it should consider

B.H.’s delay in reporting the abuse in evaluating the reliability of her

testimony. (See N.T Trial, 1/20/11, at 99-100, 118-19). Given this record,

M.M.’s testimony regarding an incident that she disputes or does not

remember took place when she was eleven years old on a school bus would

have added little with respect to evaluating B.H.’s credibility.

       Based on the foregoing, we conclude that the PCRA court erred as a

matter of law by granting Appellee a new trial based on ineffective

assistance of trial counsel.       See Williams, supra at 1239.        While Rude

could, and probably should, have attempted further to impeach B.H.’s

credibility by calling M.M. as a witness, a review of the record makes clear

that he made sustained, strenuous efforts to undermine B.H.’s credibility

during trial by highlighting her motive to lie, inconsistencies in the


____________________________________________


7
  The attorneys’ closing arguments were not transcribed, (see N.T Trial,
1/20/11, at 106); however, the parties and the PCRA court acknowledge
that Rude made this argument to the jury.



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testimony, and her delay in reporting the abuse. The jury obviously believed

B.H.’s    testimony,   which   was   strongly   supported   by   medical   expert

testimony, and, shortly after trial, the sentencing court described the

evidence of Appellee’s guilt as “overwhelming.”        Thus, we conclude that

Appellee has failed to demonstrate prejudice, and has not met his burden of

establishing that any failing on counsel’s part “in the circumstances of [this]

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.”          42

Pa.C.S.A. § 9543(a)(2)(ii); see also Michaud, supra at 867.           Therefore,

the Commonwealth’s issue on appeal merits relief. Accordingly, we reverse

the order of the PCRA court.

         Order reversed.   Judgment of sentence reinstated.          Jurisdiction

relinquished.

         Judge Panella joins the Memorandum.

         Judge Bowes files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




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