Com. v. Smith, K. , 167 A.3d 782 ( 2017 )

J-S31025-17
2017 Pa. Super. 242
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KERRY CHARLES SMITH, :
:
Appellant : No. 1397 WDA 2016
Appeal from the PCRA Order August 31, 2016
In the Court of Common Pleas of Bedford County
Criminal Division at No.: CP-05-CR-0000303-2011
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.: FILED JULY 24, 2017
Appellant, Kerry Charles Smith, appeals from the August 31, 2016
Order entered in the Bedford County Court of Common Pleas dismissing his
first Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. He challenges the effectiveness of trial counsel’s assistance.
After careful review, we affirm.
The Commonwealth charged Appellant with Rape of Child, Involuntary
Deviate Sexual Intercourse with a Child, Aggravated Indecent Assault on a
Child, Indecent Assault on a Child, Indecent Exposure, Corruption of Minors,
and Attempted Indecent Assault on a Child1 related to Appellant’s sexual
abuse of two young girls2 while babysitting for their family.
____________________________________________
1
18 Pa.C.S. §§ 3121(c) (5 counts), 3123(b) (5 counts), 3125(a)(7) (10
counts), 3126(a)(7) (15 counts), 3127(a) (31 counts), 6301(a) (1 count),
and 901(a) (2 counts), respectively.
(Footnote Continued Next Page)
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On direct appeal, this Court adopted the trial court’s statement of facts
as follows:
The charges arose when Ch.J., an eleven-year-old girl, told her
family that Appellant had attempted to kiss her and touched her
chest. Upon hearing this complaint, Ch.J.’s older sister, Ca.J.,
came forward with allegations that she too had been assaulted
by Appellant numerous times when she was seven [to ten years
old], several years before. During their investigation, the
Pennsylvania State Police conducted a consensual intercepted
phone call between Appellant and Ca.J., in which Appellant made
several incriminating statements.
* * *
Ca.J. testified that Appellant babysat her from the time she was
seven years of age to ten years of age. Ca.J. narrowed the
babysitting periods to times when both of her parents were
working for the night or her father would go out on a fire call.
She testified that Appellant would make her watch pornographic
movies with him while she sat on Appellant’s lap. Appellant then
progressed to ma[s]turbating in front of the child, and then had
Ca.J. masturbate him. Appellant ejaculated in both scenarios.
Ca.J. testified that Appellant had her masturbate him over thirty
times. Ca.J. testified that the masturbation incidents occurred
near radio towers close to Appellant’s home, inside Appellant’s
home, and on motorcycle trips with Appellant. Ca.J. also
testified that Appellant digitally penetrated her genitals … over
ten times. Ca.J. testified that these incidents occurred in her
parents’ bedroom, on her couch, at Appellant’s home, and
sometimes her bedroom. As she got closer to ten years of age,
Appellant had Ca.J. perform oral sex on him and Appellant would
sometimes ejaculate in her mouth. Ca.J. testified that the
incidents of oral sex occurred in her bedroom while Appellant sat
at her desk, and happened at least five times.
_______________________
(Footnote Continued)
2
Due to the age of the victims and the nature of the offenses, we will refer
to the victims only by their initials: Ch.J., and her older sister Ca.J.
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* * *
Ch.J., who was eleven years of age at the time of trial, testified
that she visited Appellant during the summer of 2011. Appellant
took her to an antenna tower on a nearby mountain and
attempted to kiss her in what she described as a “boyfriend” or
“girlfriend” kiss. Ch.J. also testified that when she was seven-
years-old, Appellant came to her home and attempted to touch
her chest.
* * *
Ch.J. testified that while Appellant was working on computers at
her home he tried to make her watch “strange videos” with
“boys and girls.” She described the videos as “disgusting” and
“inappropriate.”
Commonwealth v. Smith, No. 410 WDA 2013, unpublished memorandum
at 2-3 (Pa. Super. filed Sept. 12, 2014) (footnote omitted).
Ch.J. provided a statement describing Appellant’s abuse to a
Pennsylvania State Trooper in the presence of her grandmother and her
sister Ca.J. Appellant’s counsel did not file any pre-trial motions challenging
the victims’ competency or alleging taint of Ch.J.’s testimony.
Appellant personally found and hired a forensic engineer expert,
Dennis Walsh, before trial counsel Thomas A. Crawford Jr., Esquire, entered
his appearance, in order to challenge the authenticity of the recording.
Counsel reviewed Walsh’s resume and spoke with him numerous times
before trial. “At trial, Walsh admitted to lying under oath in a previous court
proceeding, falsifying his resume, and being diagnosed with a paranoia
disorder[,] which led Walsh to believe balloons were ‘speaking to him’ on
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one occasion.” PCRA Court Opinion, 8/31/16, at 2. The trial court provided
a special cautionary jury instruction regarding Walsh’s expert testimony.
On July 30, 2012, a jury convicted Appellant of Rape of Child and
numerous other sexual offenses. On November 8, 2012, the trial court
imposed an aggregate term of 80 to 195 years’ incarceration.
Appellant filed a timely Post-Sentence Motion, which the trial court
denied on November 20, 2012. After the reinstatement of his appeal rights
nunc pro tunc, Appellant filed a timely Notice of Appeal on March 4, 2013.3
This Court affirmed the Judgment of Sentence on September 12, 2014.
Commonwealth v. Smith, supra. Our Supreme Court denied allowance of
appeal on March 24, 2015. Commonwealth v. Smith, 112 A.3d 652 (Pa.
2015). Appellant did not seek review by the U.S. Supreme Court.
Appellant’s Judgment of Sentence, therefore, became final on June 22,
2015. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.
On January 11, 2016, Appellant filed the instant timely pro se PCRA
Petition, his first, later amended by appointed counsel, alleging ineffective
assistance of trial counsel. The PCRA court held an evidentiary hearing on
May 20, 2016, at which Appellant testified and presented testimony from his
____________________________________________
3
On February 20, 2013, the PCRA court reinstated Appellant’s appellate
rights nunc pro tunc pursuant to a PCRA Petition alleging ineffective
assistance of counsel for failing to file a requested appeal.
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trial counsel Thomas A. Crawford Jr., Esquire, and Lesley R. Childers-Potts,
Esquire.
On August 31, 2016, the PCRA court dismissed Appellant’s Petition in a
Memorandum Opinion and Order. On September 20, 2016, Appellant filed a
Notice of Appeal. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. Whether the PCRA court erred in finding that trial counsel,
Thomas Crawford, was not ineffective for failing to properly
address and challenge the competency of Ch.J.
II. Whether the PCRA court erred in finding that trial counsel,
Thomas Crawford, was not ineffective for failing to file a “taint”
motion.
III. Whether the PCRA court erred in finding that trial counsel,
Thomas Crawford, was not ineffective regarding vetting and
calling “expert” Dennis Walsh to testify on the Appellant’s behalf
at trial.
Appellant’s Brief at 4.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.
Super. 2012).
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To be eligible for relief pursuant to the PCRA, Appellant must establish,
inter alia, that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant
must also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. 42 Pa.C.S. § 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. § 9544(b).
Each of Appellant’s issues in this appeal avers that he received
ineffective assistance of trial counsel. The law presumes counsel has
rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276,
1279 (Pa. Super. 2010). The burden of demonstrating ineffectiveness rests
on Appellant. Id. To satisfy this burden, Appellant must plead and prove by
a preponderance of the evidence 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 reasonable probability that
the outcome of the challenged proceeding would have been different.”
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to
satisfy any prong of the test will result in rejection of the appellant’s
ineffective assistance of counsel claim. Commonwealth v. Jones, 811
A.2d 994, 1002 (Pa. 2002).
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First, Appellant must meet the “arguable merit” prong. “The threshold
inquiry in ineffectiveness claims is whether the issue/argument/tactic which
counsel has foregone and which forms the basis for the assertion of
ineffectiveness is of arguable merit[.]” Commonwealth v. Pierce, 645
A.2d 189, 194 (Pa. 1994) (quotation and citation omitted). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004)
(quotation and citation omitted).
Second, Appellant must meet the “no reasonable basis” prong. We
apply the “reasonable basis” test to determine whether counsel’s chosen
course was designed to effectuate his client’s interests. Pierce, supra at
194-95. “If we conclude that the particular course chosen by counsel had
some reasonable basis, our inquiry ceases and counsel’s assistance is
deemed effective.” Id. (quotation and citation omitted).
Third, Appellant must meet the “prejudice” prong. “Prejudice is
established when a defendant demonstrates that counsel’s chosen course of
action had an adverse effect on the outcome of the proceedings.”
Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (quotation
marks and citation omitted). “The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)). “A reasonable
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probability is a probability sufficient to undermine confidence in the
outcome.” Id. “[A] criminal defendant alleging prejudice must show that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. (quotation marks and citation omitted).
In his first issue on appeal, Appellant contends that trial counsel was
ineffective for failing to challenge the competency of Ch.J., who was eleven
years old when she testified at Appellant’s trial. Appellant’s Brief at 9-13.
Relatedly, Appellant also claims that counsel was ineffective for failing to
object when the Commonwealth asked questions in front of the jury that
established the Ch.J.’s competency. Id. at 11-13.4 Appellant claims this
____________________________________________
4
The following excerpt is the entirety of the purported competency colloquy:
[Commonwealth:] [D]o you know you just took an oath; right?
[Ch.J.:] Uh-huh.
[Commonwealth:] Do you know that means you have to tell
the truth?
[Ch.J.:] Uh-huh.
[Commonwealth:] Do you know the difference between telling
the truth and telling a lie?
[Ch.J.:] (Nodded head in the affirmative).
[Commonwealth:] All right. If I said that wall was red, would
that be a truth or a lie?
[Ch.J.:] A lie.
(Footnote Continued Next Page)
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questioning violated the dictates of Commonwealth v. Washington, 722
A.2d 643 (Pa. 1998).5
The competency to testify is presumed where the witness is more than
fourteen years of age. See Rosche v. McCoy, 156 A.2d 307, 310 (Pa.
1959). See also Pa.R.E. 601(a); Daniel J. Anders, Ohlbaum on the
Pennsylvania Rules of Evidence § 601.10[2] (2017 ed. LexisNexis Matthew
Bender). However, the presumption does not arise where a child witness is
under age fourteen. Rosche, supra at 310. “Under 14 there must be
judicial inquiry as to mental capacity, which must be more searching in
proportion to chronological immaturity.” Id. However, this Court has
previously held that any error in the failure to conduct a separate formal
competency hearing constitutes harmless error in light of a minor victim’s
testimony at trial where the trial court had the opportunity to observe the
minor’s demeanor. See Commonwealth v. Harvey, 812 A.2d 1190, 1199
_______________________
(Footnote Continued)
[Commonwealth:] Okay. And if I said you’re wearing a pink
flowered shirt there, would that be a truth or a lie?
[Ch.J.:] The truth.
[Commonwealth:] Okay. So you know the difference?
[Ch.J.:] (Nodded head in the affirmative).
N.T. Trial, 7/26/12, at 104-05.
5
In Washington, our Supreme Court established a per se rule requiring
that child witness competency hearings be conducted outside the presence
of the jury.
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(Pa. 2002), abrogated on other grounds, Commonwealth v. Elliott, 80
A.3d 415 (Pa. 2013).
In his direct appeal, Appellant presented several challenges to the
victim’s competency. This Court first deemed Appellant’s competency
challenges waived because he failed to challenge the victim’s competency or
to object to the victim’s testimony at trial in any way. Commonwealth v.
Smith, No. 410 WDA 2013, unpublished memorandum at 5 (Pa. Super. filed
Sept. 12, 2014). Significantly, this Court also observed that “[a]bsent
waiver, and in consideration of the discretion afforded the trial court, we
note that the Commonwealth elicited sufficient testimony from [the victim]
Ch.J. to establish her competency.” Id. at 5 n.3 (citations omitted).
Appellant’s claim has arguable merit under the clear guidance provided
in Pa.R.E. 601(a) and our case law pertaining to child witnesses under
fourteen years of age. Appellant’s counsel also failed to articulate a
reasonable basis for his failure to challenge Ch.J.’s competency by
requesting a proper colloquy outside the presence of the jury. Nevertheless,
Appellant is not entitled to relief because he cannot demonstrate prejudice
under the circumstances.
Appellant has failed to carry his burden to prove that there is a
reasonable probability that the result of the trial would have been different
without counsel’s error. We note that nowhere in his Brief does Appellant
even allege that Ch.J. is or was incompetent. See Appellant’s Brief at 9-13.
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Moreover, Appellant has not directed this Court to any evidence submitted in
support of his PCRA Petition regarding Ch.J.s incompetence.
Further, Appellant cannot demonstrate that there is a reasonable
probability that the trial court would have sustained his objection to Ch.J.’s
competency. Appellant fails to develop and explain what questions he would
have asked about Ch.J.’s competency had the trial court conducted a
separate competency hearing outside the presence of the jury. Appellant
has failed to show a reasonable probability that the competency hearing
would have resulted in a finding of Ch.J.’s incompetence resulting in the
preclusion of her testimony, let alone that the outcome of his trial would
have been different.
Turning to Appellant’s related claim regarding counsel’s failure to
object to the Commonwealth’s asking competency questions in front of the
jury, we note that the trial court never issued an express or formal ruling in
front of the jury that Ch.J. was competent to testify. Ch.J.’s answers to the
Commonwealth’s questions about the distinction between truth and a lie
flowed seamlessly into her testimony regarding Appellant’s crimes. As such,
no impermissible bolstering occurred in this case in violation of
Washington. See Commonwealth v. Hutchinson, 25 A.3d 277, 294-95
(Pa. 2011) (finding harmless error in conducting colloquy before the jury
where the trial court did not vouch for or endorse child’s testimony).
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In addition, the trial court expressly instructed the jury that the jury
was the sole fact-finder and sole judge of credibility. N.T. Trial, 7/30/12, at
161-67. The jury is presumed to follow the trial court’s instructions.
Hutchinson, supra at 296. Appellant has provided not the slightest
evidence that the jury did not do so in this case.
Appellant’s first ineffectiveness claim, thus, fails.
In his second issue on appeal, Appellant claims that his trial counsel
was ineffective for failing to file a “taint” Motion alleging the victim’s memory
had been tainted as a result of her interview with the Pennsylvania State
Police. Appellant’s Brief at 13-18. Appellant avers “that Ch.J. did not
initially state that the Appellant did anything inappropriate to her and it is
only after the [Pennsylvania State Police] Trooper turns the questioning over
to Ca.J. that Ch.J. remembers improper things occurring[.]” Id. at 16.
Appellant claims the questioning was, therefore, suggestive. Id. at 17.
Generally, a court evaluates an allegation of taint at a competency
hearing. Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003). The
proponent of the claim first bears the burden of establishing “some
evidence” of taint. Id. Once the party meets that threshold requirement,
he then must meet the ultimate burden of demonstrating taint by clear and
convincing evidence. Id. The critical inquiry in deciding the issue of taint at
a competency hearing is whether the memory of the child has been
corrupted. Id.
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In analyzing whether a party has met the “some evidence of taint”
standard, the trial court considers the totality of the circumstances around
the child’s allegations. Id at 41. This Court has identified some of the
common considerations relevant to this analysis as follows:
(1) the age of the child; (2) the existence of a motive hostile to
the defendant on the part of the child’s primary custodian; (3)
the possibility that the child’s primary custodian is unusually
likely to read abuse into normal interaction; (4) whether the
child was subjected to repeated interviews by various adults in
positions of authority; (5) whether an interested adult was
present during the course of any interviews; and (6) the
existence of independent evidence regarding the interview
techniques employed.
Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (citation
omitted).
In addressing Appellant’s ineffectiveness claim, the PCRA court
observed:
Here, [Attorney] Crawford testified that he was aware of the
holding in [Commonwealth v. Delbridge, 855 A.2d 27 (Pa.
2003),] and of the possibility of filing a “taint” motion to exclude
Ch.J.’s testimony. Crawford also acknowledged that he was
aware that the Trooper interviewed Ch.J. in the presence of the
other victim and their grandmother. Crawford testified that he
did not pursue a “taint” motion because he did not believe such
a challenge was warranted. After a careful review of the record,
we find Crawford had a reasonable basis for such a conclusion.
In support of his argument, [Appellant] admitted the transcript
of the Trooper’s interview with Ch.J. At the beginning of the
interview, Ch.J. tells the Trooper that [Appellant] attempted to
kiss her and have her watch videos with “girls and boys.” All of
this information was elicited by open-ended questions given only
by the Trooper.6 In fact, it is only after Ch.J. tells the Trooper
the above information that her family and the Trooper attempt
more leading questioning. However, despite the more
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suggestive methods attempted by Ca.J. and her
grandmother, Ch.J. repeatedly denies their suggestions
and refuses to implicate [Appellant] in any further
conduct than she already had in response to the non-
leading questions. Therefore, while we are inclined to agree
with [Appellant] that the questioning methods shift to being
suggestive in nature later in the interview, Ch.J.’s responses
nonetheless remain consistent and—in fact—resilient against
suggestions even by her own family members. Moreover, Ch.J.’s
testimony at trial was limited strictly to the information she gave
in response to the Trooper’s open-ended questions at the
beginning of the interview, which we find would not trigger
additional scrutiny under Delbridge. We therefore find that
Crawford had a reasonable basis for declining to pursue a “taint”
motion and accordingly deny [Appellant’s] requested relief on
this argument.
6
We find it important to note that the information given in
response to non-leading questions comprised essentially
the entirety of Ch.J.’s testimony at trial.
PCRA Court Opinion, 8/31/16, at 8 (citations omitted; emphasis added).
As noted above, in order for a taint hearing to be warranted, the
burden would have been on Appellant to come forward with evidence of
taint. Judd, supra. There appears to be no dispute in this case that the
Trooper interviewed the minor victim while her grandmother and sister were
in the room. However, the presence of an interested adult during
questioning is only one factor for a court to consider as “some evidence of
taint.” Delbridge, supra at 41; Judd, supra at 1229. Our cases
unequivocally require a court to review a taint motion utilizing a totality of
the circumstances test. See id.
Appellant does not point to any other concerning factors supporting his
argument regarding Ch.J.’s purportedly “corrupted” memory. Appellant fails
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to point to any evidence of hostile motive on the part of Ch.J., her
grandmother, or her sister. Appellant also fails to show repeated interviews,
or other independent evidence of coercive or suggestive interview
techniques that have corrupted Ch.J.’s memory.
Based on the totality of the circumstances presented in this case, we
conclude Appellant would not have met his burden to warrant a taint
hearing. It is axiomatic that counsel cannot be ineffective for failing to raise
a meritless issue. Fears, supra at 804. Thus, Appellant fails to satisfy the
first prong of the ineffectiveness test, and he is not entitled to relief on this
issue.
In his third claim, Appellant avers that his trial counsel was ineffective
for calling Walsh as an expert witness at trial and failing to vet Walsh.
Appellant’s Brief at 19. Appellant also claims that counsel was ineffective for
failing to call a different expert witness without “credibility and truthfulness”
issues. Id. at 20-21. We address each issue in turn.
We initially note that the certified record does not support Appellant’s
averment that counsel failed to vet the expert. Appellant’s Brief at 20.
Counsel testified at the PCRA hearing that he obtained and reviewed the
expert’s resume and spoke to the expert numerous times, even though
Appellant had personally hired and paid the expert for his services before
counsel entered his appearance and without counsel’s advice or assistance.
See N.T. PCRA, 5/20/16, at 23-24.
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The PCRA court addressed Appellant’s claims as follows:
[Appellant] next argues that Crawford was ineffective in not
adequately “vetting” [Appellant’s] expert witness, Dennis Walsh.
While we may agree that Crawford could have handled Walsh’s
deficiencies in a more discrete manner, we nonetheless find that
Crawford had a reasonable basis for using Walsh given the facts
of the case and find that [Appellant] has failed to prove that he
was prejudiced by Crawford’s decision.
Primarily, we highlight that Crawford’s overall assessment of
[Appellant’s] case was—and is—directly on point. In Crawford’s
view, success at trial depended almost entirely upon the
admissibility of [Appellant’s] incriminating recorded statements
in his consensual call with one of the victims.11 Crawford
testified that, once he knew the recorded statement was coming
in at trial, he needed to address the recording in some way.
And, despite Walsh’s deficiencies, Crawford did not seek another
expert nor request a trial continuance because a prior search for
another expert was fruitless and because he did not believe
[Appellant] could afford a second expert. We therefore find that,
given the circumstances Crawford found himself in at trial, he
had a reasonable basis for calling Walsh as an expert witness
and that his decision was made in furtherance of [Appellant’s]
interests. Crawford was presented with the binary decision of:
1) calling no expert to rebut the key piece of evidence that was
“fatally damaging to his case,” or 2) challenging said evidence
with an expert, however problematic his credibility may be.
While neither option is optimal, at the very least Crawford’s
decision provided [Appellant] with a defense.
11
We note that [Appellant] seemingly agrees with
Crawford’s assessment, as [Appellant] calls the recording
“fatally damaging to his case.” The question that naturally
arises, then, is what would [Appellant] now have done
differently if placed in Crawford’s position again? If the
answer is to call a credible alternative expert witness, we
have no evidence that one exists. As we discuss, infra,
[Appellant] has made no showing that another expert that
shares Walsh’s opinion is available. Therefore, if
Crawford’s choice at trial was limited to no expert or
damaged expert, we fail to see how [Appellant] was
prejudiced by the choice that provided some defense, no
matter how hampered it may have been. Nor do we see
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how Crawford’s decision had no reasonable basis in
furthering his client’s interests at trial.
PCRA Court Opinion, 8/31/16, at 11-12 (citations omitted; emphasis in
original).
We agree with the PCRA court’s analysis. Appellant hired Walsh before
counsel’s involvement. See N.T. PCRA, 5/20/16, at 23-24. Given counsel’s
alternative choice of not contesting the recording, a key piece of evidence,
we conclude that counsel had a reasonable basis designed to effectuate
Appellant’s interests in deciding to call Walsh at trial.6
With respect to Appellant’s claim that counsel should have called a
different expert witness, it is well settled that the “failure to call [an expert]
witness is not per se ineffective assistance of counsel as such decision
generally involves a matter of trial strategy.” Commonwealth v. Lauro,
819 A.2d 100, 105 (Pa. Super. 2003) (citation omitted). A claim that
counsel was ineffective for failing to call a potential expert witness to testify
at trial requires a petitioner to “establish that the witness existed and was
available, that counsel was informed of the witness’ existence, that the
witness was ready and willing to testify[,] and that the absence of the
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6
Moreover, Appellant concedes that he “was unable to find any case directly
on point[.]” Appellant’s Brief at 22. His reference to Commonwealth v.
Penrose, 669 A.2d 996 (Pa. Super. 1995), for its instructiveness provides
no support. See id. (concluding that counsel was not ineffective when
refusing to emphasize a diminished capacity defense during closing
arguments when weak and diluted expert testimony supported that
defense).
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witness prejudiced the defendant to a point where the defendant was denied
a fair trial.” Commonwealth v. Moser, 921 A.2d 526, 531 (Pa. Super.
2007) (citation omitted).
The PCRA court addressed Appellant’s claim as follows:
Moreover, [Appellant] has failed to make any showing that an
expert witness alternative to Walsh even exists. Noticeably
lacking in [Appellant’s] petition is any averment that he has
located an expert who shares Walsh’s opinion but lacks Walsh’s
baggage. Indeed, such a[n] expert may not exist, which lends
credence to Crawford’s testimony that his search for an
alternative expert was fruitless.12 Therefore, we also find that
[Appellant] has failed to prove prejudice where there is no
showing that a more palatable expert witness who shares
Walsh’s opinion even exists.
12
We also note that[] the possibility that no other expert
exists may be indicative of the strength of Walsh’s opinion
and his problems as a witness. That is, Walsh may be the
only “expert” in existence that would be willing to give his
opinion due, at least in part, to his problems as a witness.
PCRA Court Opinion, 8/31/16, at 12-13 (citations omitted; emphasis in
original).
Our review supports the PCRA court’s analysis. The PCRA court
correctly noted that Appellant failed to demonstrate that an alternative
expert exists, or that that unknown expert was available and willing to
testify at trial. As a result, Appellant has failed to show that counsel’s
conduct lacked a reasonable basis designed to effectuate his interests and
his final ineffectiveness claim fails.
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The record supports the PCRA court's findings and its Order is
otherwise free of legal error. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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