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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                   v.                     :
                                          :
MEGAN ELIZABETH PUCHALSKI,                :        No. 1507 MDA 2019
                                          :
                        Appellant         :


           Appeal from the PCRA Order Entered August 13, 2019,
             in the Court of Common Pleas of Lebanon County
             Criminal Division at No. CP-38-CR-0001962-2016


BEFORE: PANELLA, P.J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 19, 2020

      Megan Elizabeth Puchalski appeals from the August 13, 2019 order

denying her petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      The relevant facts of this case, as summarized by a prior panel of this

court on direct appeal, are as follows:

            Appellant was intoxicated on the morning of May 29,
            2016, when Sandra Wolfe, an emergency medical
            technician (EMT); Patti Kreitzer, a paramedic;
            Richard Kreitzer,    Bunker     Hill  Fire     Chief;
            Charles VanDusen, Bunker Hill Deputy Fire Chief;
            Pennsylvania State Trooper David Lebron; and
            Pennsylvania State Trooper Michael Stramara, all
            responded to [a]ppellant’s residence, based on an
            “emergency call” from appellant’s mother of a “critical
            sick person.” These six individuals testified at trial
            about their efforts to administer medical aid to
            [a]ppellant and transport her to the hospital. The
            essence of their testimony was that [a]ppellant was
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            partially clothed, covered with bruises, extremely
            belligerent, physically combative, and resisted the
            first-responders’ efforts to provide medical aid by
            flailing, punching, kicking and biting.

Commonwealth         v.     Puchalski,    No.     1916    MDA      2017,      unpublished

memorandum at 1 (Pa.Super. filed July 20, 2018) (citations to notes of

testimony omitted), appeal denied, 205 A.3d 1235 (Pa. 2019).

      Appellant was subsequently charged with multiple counts of aggravated

assault, simple assault, and related offenses in connection with this incident.

On   October     4, 2017,     a   jury   found    appellant     guilty   of   all   counts.

Richard Roberts, Esq. (hereinafter, “trial counsel”), represented appellant

throughout her jury trial. On December 6, 2017, the trial court sentenced

appellant to 23 months’ intermediate punishment followed by 6 months’

electronic monitoring.       On July 20, 2019, a panel of this court affirmed

appellant’s judgment of sentence, and our supreme court denied appellant’s

petition for allowance of appeal on April 3, 2019. (See id.) On June 6, 2019,

appellant filed the instant timely PCRA petition, which was denied following an

evidentiary hearing on August 13, 2019. This timely appeal followed. On

September 16, 2019, the PCRA court ordered appellant to file a concise

statement   of    errors    complained     of    on   appeal,    in   accordance      with

Pa.R.A.P. 1925(b).         Appellant filed      her   timely concise     statement on

September 30, 2019, and the PCRA court filed its Rule 1925(a) opinion on

November 12, 2019.

      Appellant raises the following multi-layered issue for our review:


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            Whether the [PCRA] court erred in denying relief
            pursuant to the [PCRA] following an evidentiary
            hearing when [appellant] presented numerous
            instances of ineffective assistance of counsel,
            including failing to introduce photographs of
            [appellant’s] injuries, medical records of [appellant’s]
            injuries, medical testimony of [appellant’s] PTSD,
            codified and standard protocols regarding a patient’s
            right to refuse medical treatment and character
            testimony, when based upon the totality of the
            evidence trial counsel failed to introduce at trial,
            [appellant] was denied a fair trial?

Appellant’s brief at 5.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that her conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

      All of appellant’s claims concern the ineffectiveness of her trial counsel.

To prevail on a claim of ineffective assistance of counsel under the PCRA, a

petitioner must plead and prove by a preponderance of the evidence that

counsel’s ineffectiveness “so undermined the truth-determining process that


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no reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii). We apply a three-pronged test for determining

whether trial counsel was ineffective, derived from the test articulated by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668,

687 (1984), and as applied in Commonwealth v. Pierce, 527 A.2d 973 (Pa.

1987). Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013).

            The Pierce test requires a PCRA petitioner to prove:
            (1) the underlying legal claim was of arguable merit;
            (2) counsel had no reasonable strategic basis for his
            action or inaction; and (3) the petitioner was
            prejudiced—that is, but for counsel’s deficient
            stewardship, there is a reasonable likelihood the
            outcome of the proceedings would have been
            different.

Id., citing Pierce, 527 A.2d at 975.

      This court has explained that a petitioner “must meet all three prongs

of the test for ineffectiveness[.]” Commonwealth v. Charleston, 94 A.3d

1012, 1020 (Pa.Super. 2014) (citation and internal quotation marks omitted),

appeal denied, 104 A.3d 523 (Pa. 2014).         “[C]ounsel is presumed to be

effective and the burden of demonstrating ineffectiveness rests on appellant.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation

omitted), appeal denied, 30 A.3d 487 (Pa. 2011). Additionally, we note that

counsel cannot be found ineffective for failing to raise a claim that is devoid

of merit. See Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).

      After a thorough review of the record, including the briefs of the parties,

the applicable law, and the well-reasoned opinion of the PCRA court, it is our


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determination that appellant’s ineffectiveness claims warrant no relief. The

PCRA court comprehensively discussed the five ineffectiveness claims raised

by appellant and concluded that they were either meritless and/or her trial

counsel had a reasonable strategic basis for his decisions. We have reviewed

the record in its entirety and have considered the merit of appellant’s

arguments. Following our careful consideration, we find that the PCRA court’s

conclusions are supported by competent evidence and are clearly free of legal

error.

         Specifically, we agree with the PCRA court that appellant was not

prejudiced by trial counsel’s failure to introduce:      (a) the color photos

depicting her injuries and (b) the medical records pertaining to her injuries,

“because [a]ppellant plainly failed to demonstrate that there is a reasonable

probability that, but for [trial] counsel’s alleged failure to introduce [this

evidence], the outcome of the case would have been different.” (PCRA court

opinion, 11/12/19 at 6, 8.) Likewise, we agree with the PCRA court that there

is no arguable merit to appellant’s claim that her trial counsel was ineffective

for failing to introduce testimony from Dr. David Sabo that appellant suffered

from PTSD “because such information could have easily prejudiced the jury

against his client[.]”   (Id. at 9-12.)   We also agree with the PCRA court’s

reasoning that appellant’s contention that her trial counsel was ineffective for

not introducing evidence of the protocols regarding a patient’s right to refuse

medical treatment fails to satisfy all three prongs of the Pierce test. (Id. at



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13-14.)   Lastly, we agree with the PCRA court that trial counsel had a

reasonable strategic basis for electing not to call appellant’s character

witnesses because her extensive “charges and convictions . . . squarely go

against any proffered reputation for peacefulness testimony.” (Id. at 16.)

     Accordingly, we adopt the PCRA court’s comprehensive November 12,

2019 opinion as our own for purposes of this appellate review.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/19/2020




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