Com. v. Ecklund, S. ( 2016 )


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  • J-S78033-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    SHAWN ECKLUND
    Appellant                 No. 462 WDA 2016
    Appeal from the PCRA Order March 2, 2016
    in the Court of Common Pleas of Venango County Criminal Division
    at No(s): CP-61-CR-0000852-2011
    BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
    MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 31, 2016
    Appellant, Shawn Ecklund, appeals from the order entered in the
    Venango County Court of Common Pleas denying his petition for relief filed
    pursuant to the Post Conviction Relief Act1 (“PCRA”). We affirm.
    We adopt the facts and procedural history as set forth by the PCRA
    court’s opinion.2 Following a hearing, Appellant’s PCRA petition 3 was denied
    *
    Former Justice specially assigned to the Superior Court.
    1
    42 Pa.C.S. §§ 9541-9546.
    2
    PCRA Ct. Op., 3/2/16, at 1-4. We note a typographical error in the PCRA
    court opinion on page 3. The PCRA court received a pro se letter from
    Appellant on June 26, 2015.
    3
    We note that this Court’s memorandum affirming the judgment of sentence
    was docketed on September 18, 2014. We adopt the PCRA court’s analysis
    of the timeliness of the PCRA petition.      See Trial Ct. Op. at 5-7;
    Commonwealth v. Ecklund, 1665 WDA 2012 (unpublished memorandum)
    (Pa. Super. Aug. 5, 2014).
    J-S78033-16
    and this timely appeal followed.    Appellant filed a court-ordered Pa.R.A.P.
    1925(b) statement of errors complained of on appeal, and the PCRA court
    filed a responsive opinion incorporating its February 29, 2016 opinion.
    Appellant raises the following issues for our review:
    The PCRA [c]ourt erred in denying [Appellant’s] PCRA
    petition when his trial counsel was ineffective in failing to
    object to the trial testimony of Dr. Adams, who, in effect,
    testified as an expert witness.
    The PCRA [c]ourt erred in denying [Appellant’s] PCRA
    petition when he argued that he should have been given
    the opportunity to explore his plea options.
    The PCRA [c]ourt erred in denying [Appellant’s] PCRA
    petition when he argued that trial counsel was ineffective
    in failing to object when the District Attorney implied to
    the jury that the victim could have stated that more crimes
    had occurred.
    The PCRA [c]ourt erred in denying [Appellant’s] PCRA
    petition when he argued that his trial counsel was
    ineffective in failing to have a psychological evaluation
    conducted to determine whether or not [Appellant]
    appreciated his actions and that they were wrong.
    Appellant’s Brief at 3-4.
    Appellant contends counsel was ineffective for failing to object to the
    testimony of Dr. Adams regarding concussions because Appellant did not
    have the opportunity to obtain a rebuttal witness.       Id. at 8.   Appellant
    “argues that in hindsight, he would have taken the plea had he knowns [sic]
    that there was a possibility that he would have received the sentence that he
    ultimately received.” Id. at 9. Appellant avers counsel was ineffective for
    failing to object when the District Attorney inferred he “could have been
    -2-
    J-S78033-16
    charged with more crimes [which] means that he was guilty of more
    crimes.”    Id. at 12.    Lastly, Appellant claims counsel was ineffective for
    failing to have a psychological evaluation conducted to prove that his post
    traumatic stress following his service in Iraq “affected his thinking.” Id. at
    12.4
    Our review of appeals from the denial of relief under the PCRA is well-
    settled:
    [A]n appellate court reviews the PCRA court’s findings to
    see if they are supported by the record and free from legal
    error.    This 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 . . . . In addition, [t]he
    level of deference to the hearing judge may vary
    depending upon whether the decision involved matters of
    credibility or matters of applying the governing law to the
    facts as so determined.
    Commonwealth v. Fahy, 
    959 A.2d 312
    , 316 (Pa. 2008) (quotation marks
    and citations omitted).
    A PCRA court passes on witness credibility at PCRA
    hearings, and its credibility determinations should be
    provided great deference by reviewing courts. Indeed, one
    4
    We note that the totality of Appellant’s argument in support of this claim is
    that he “testified at the time of the PCRA hearing that he had spoken to his
    attorney about post traumatic stress following serving six years in Iraq and
    that he specifically asked his attorney to get him a mental health evaluation
    to prove these issues affected his thinking.” Appellant’s Brief at 12. “We
    have repeatedly held that failure to develop an argument with citation to,
    and analysis of, relevant authority waives the issue on review.”
    Commonwealth v. Plante, 
    914 A.2d 916
    , 924 (Pa. Super. 2006). Given
    the trial court’s analysis of the claim and the record before this Court, we
    decline to find the issue waived.
    -3-
    J-S78033-16
    of the primary reasons PCRA hearings are held in the first
    place is so that credibility determinations can be made[.]
    Commonwealth v. Johnson, 
    966 A.2d 523
    , 539 (Pa. 2009) (citation
    omitted).
    To be eligible for PCRA relief, [a]ppellant must prove by
    a preponderance of the evidence that his conviction or
    sentence resulted from one or more of the enumerated
    circumstances found at 42 Pa.C.S. § 9543(a)(2) (listing,
    inter alia, the ineffective assistance of counsel and the
    unavailability at the time of trial of exculpatory evidence,
    which would have changed the outcome of the trial had it
    been introduced). Further, [a]ppellant must demonstrate
    that the issues raised in his PCRA petition have not been
    previously litigated or waived. Id. § 9543(a)(3). . . . A
    PCRA claim 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 post[-]conviction
    proceeding.” Id. § 9544(b). . . .
    It is well-established that counsel is presumed effective,
    and to rebut that presumption, the PCRA petitioner must
    demonstrate that counsel’s performance was deficient and
    that such deficiency prejudiced him. Strickland v.
    Washington, 
    466 U.S. 668
    , 687–91, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984). This Court has characterized the
    Strickland standard as tripartite, by dividing the
    performance       element     into   two     distinct  parts.
    Commonwealth v. Pierce, 
    515 Pa. 153
    , 
    527 A.2d 973
    ,
    975 (1987).         Thus, to prove counsel ineffective,
    [a]ppellant must demonstrate that: (1) the underlying
    legal issue has arguable merit; (2) counsel’s actions lacked
    an objective reasonable basis; and (3) [a]ppellant was
    prejudiced by counsel’s act or omission. 
    Id. at 975
    .
    Relating to the reasonable basis prong, “[g]enerally,
    where matters of strategy and tactics are concerned,
    counsel’s assistance is deemed constitutionally effective if
    he chose a particular course that had some reasonable
    basis designed to effectuate his client’s interests.” Courts
    should not deem counsel’s strategy or tactic unreasonable
    “unless it can be concluded that an alternative not chosen
    -4-
    J-S78033-16
    offered a potential for success substantially greater than
    the course actually pursued.” 
    Id.
     Also “[a]s a general
    rule, a lawyer should not be held ineffective without first
    having an opportunity to address the accusation in some
    fashion. . . . The ultimate focus of an ineffectiveness
    inquiry is always upon counsel, and not upon an alleged
    deficiency in the abstract.”
    Relating to the prejudice prong of the ineffectiveness
    test, the PCRA petitioner must demonstrate “that there is a
    reasonable probability that, but for counsel’s error or
    omission, the result of the proceeding would have been
    different.” Particularly relevant herein, it is well-settled
    that “a court is not required to analyze the elements of an
    ineffectiveness claim in any particular order of priority;
    instead, if a claim fails under any necessary element of the
    Strickland test, the court may proceed to that element
    first.”
    Commonwealth v. Koehler, 
    36 A.3d 121
    , 131-32 (Pa. 2012) (some
    citations omitted).
    It is clear that a criminal defendant’s right to
    effective counsel extends to the plea process, as well
    as during trial.         However, [a]llegations of
    ineffectiveness in connection with the entry of a
    guilty plea will serve as a basis for relief only if the
    ineffectiveness caused the defendant to enter an
    involuntary or unknowing plea. Where the defendant
    enters his plea on the advice of counsel, the
    voluntariness of the plea depends on whether
    counsel’s advice was within the range of competence
    demanded of attorneys in criminal cases.
    “[T]he law does not require that [the defendant] be
    pleased with the outcome of his decision to enter a plea of
    guilty: All that is required is that [his] decision to plead
    guilty be knowingly, voluntarily, and intelligently made.”
    Moreover, with regard to the prejudice prong, where an
    appellant has entered a guilty plea, the appellant must
    demonstrate “it is reasonably probable that, but for
    counsel’s errors, he would not have pleaded guilty and
    would have gone to trial.”
    -5-
    J-S78033-16
    Commonwealth v. Timchak, 
    69 A.3d 765
    , 769–70 (Pa. Super. 2013),
    (citations omitted).
    In closing arguments, a prosecutor may comment on
    the evidence and any reasonable inferences arising from
    the evidence. . . .
    A prosecutor must have reasonable latitude in fairly
    presenting a case to the jury and must be free to
    present his or her arguments with logical force and
    vigor. The prosecutor is also permitted to respond to
    defense arguments. Finally, in order to evaluate
    whether the comments were improper, we do not
    look at the comments in a vacuum; rather we must
    look at them in the context in which they were
    made.
    Furthermore, prosecutorial misconduct will not be found
    where comments were based on the evidence or proper
    inferences therefrom or were only oratorical flair.
    Commonwealth v. Charleston, 
    94 A.3d 1012
    , 1024 (Pa. Super.), appeal
    denied, 
    104 A.3d 523
     (Pa. 2014) (quotation marks and citations omitted).
    “To sustain a claim of ineffectiveness, counsel’s approach must be so
    unreasonable    that   no   competent   lawyer    would   have   chosen   it.”
    Commonwealth v. Ervin, 
    766 A.2d 859
    , 862-63 (Pa. Super. 2000)
    (quotation marks and citation omitted omitted).
    After careful consideration of the parties’ briefs, the record, and the
    decision of the Honorable H. William White, we affirm on the basis of the
    -6-
    J-S78033-16
    PCRA court’s decision.5 See PCRA Ct. Op. at 5-16 (holding, inter alia, that
    (1) counsel attempted to use Dr. Adams’ testimony to his advantage to
    support the defense’s contention that the injuries the victim sustained were
    not serious and did not support the aggravated assault charge;6 (2) counsel
    discussed the plea agreement and determined Appellant would not admit to
    the aggravated assault charge and still have the court accept the plea
    agreement;7 (3) the prosecutor attempted to bolster the credibility of the
    victim by arguing that if the victim was going to lie she could have accused
    Appellant of more serious misconduct;8 (4) the court found counsel’s
    strategy competent and his testimony credible and that per Appellant’s
    admission regarding the simple assault charge, a defense based upon his
    mental condition was unavailable).9       Accordingly, we conclude the PCRA
    court’s findings are supported by the record. See Fahy, 959 A.2d at 316.
    Order affirmed.
    5
    We note that the PCRA court inadvertently miscited certain references to
    the notes of testimony from the PCRA hearing.
    6
    See N.T. PCRA Hr’g, 1/26/16, at 48-52.
    7
    See id. at 15-16, 18, 33-34, 45-46.
    8
    See id. at 64.
    9
    See id. at 19, 55-56.
    -7-
    J-S78033-16
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/31/2016
    -8-
    Circulated 10/07/2016 05:14 PM
    lN THE COURT OF CotvfMON PLEAS Of VENANGO COUNTY, PENNSYLVANIA
    COMMONWEALTH           OF PENNSYLVANIA
    v.
    SHAWN LOUIS ECKLUND)
    Defendant.
    OPINION OF COURT
    AND NOW, this 7•h day of April, 2016, the Court has before it Defendant's Concise
    Statement of Matters Complained of on Appeal, The matters complained of on appeal raised in the
    Concise Statement are virtually identical to the issues raised in Defendant's Post-Conviction Relief
    Act   petition (uPCRA"), dated October 2, 2015. Following a PCRA hearing on January 26, 2016,
    this Court issued an Opinion and Order of Court dated February 29, 2016 (entered on the docket
    March 2) denying Defendant's PCRA, addressing these issues al length.
    Since the Court has previously addressed the identical issues raised on appeal in its
    February 29, 20 t 6 Order of Court denying the PCRA, the Court will not issue further opinion on
    the matter. The Court would refer the Superior Court to its February 29 Opinion for this Court's
    reasoning in denying these issues raised in the Concise Statement.
    BY THE COURT.
    Specially Presiding
    cc:     DA
    Tinn Fryling, Esq.
    .    )   ")
    ;_ -·-<   /
    fN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA
    COMMONWEAL TH OF PENNSYLVANJA
    v.
    SHAWN LOUlS ECKLUND,
    Defendant.
    ORDER OF COURT
    AND NOW, this .)611 Pa. 80
    , 
    23 A.3d 980
     (2011); Commonwealth       v. Brown, 
    596 Pa. 354
    , 
    943 A.2d 264
    , 267 (2008); Co111111011wea/th v. Robinson, 
    575 Pa. 500
    , 
    837 A.2d 1157
    , 1161 (2003). We have repeatedly stated it is the
    appellant's    burden    to allege and prove           that one of
    the timeliness exceptions applies. Commonwealth      \'. Beasley, 
    559 Pa. 604
    , 
    741 A.2d 1258
    , 1261 ( 1999). Whether Appellant has
    carried his burden is a threshold inquiry prior to considering the
    merits of any claim.
    Commonwealth v. Edmiston, 
    65 A.3d 339
    , 346 (Pa. 2013).
    Under§ 9545(b )( l ), a defendant must Ji le an appeal within a year of the decision becoming
    final. Per§ 9545(b)(J),     a decision is final at the expiration of the time period to seek appellate
    review. Defendant filed direct appeal to the Superior Court following the trial court's denial of
    post-sentence    motion. The Superior Court denied this appeal on September                   18, 2014. Frain that
    point, Defendant had 30 days with which to take appeal with the Pennsylvania                      Supreme Court.
    See Pa. R.A.P. 1113. Defendant chose not to exercise this option; therefore, for purposes of§
    94545(b)(I),        the one-year limitation to file a PCRA petition began to nm October 20, 2014, and
    expired October 20, 2015.3 Co1111110111Pealth I'. Rojas, 
    874 A.2d 638
    , 6ll4-45 (Pa. Super. Ct. 2005)
    ("As such, Appellant's         judgment of sentence because final fol' PCRA purposes                      011   Monday,
    December        16. 2002, when the thirty-day appeal period expired for seeking review with mu·
    Supreme Court.").
    1
    As noted in Rojas, 
    supra,
     
    874 A.2d at
    643 n. 10, per 1 Pa. C.D.A. § 1908, when the last day or filing falls on a Saturday
    or Sunday, "such day shall be ornltted from the computation." Therefore, when the direct appeal was dismissed
    September 18, 2014, the period to appeal lo the Supreme Court would normally have expired October 18, 2014.
    However, this was a Saturday, therefore the period In which to appeal to the Supreme Court actually expired October
    20, 2014, the following Monday. One year from then, October 21, 2015, the PCRA one-year period expired.
    6
    Following the bearing In regards to Defendant 's Motion for Appointment of New Counsel,
    the court directed Atty. Misko to file a PCRA petition lo preserve Defendant's rights. Defendant,
    through his attorney, filed his PCRA October 2, 2015. This fell within the one-year period. Given
    the short time-frame from the Motion for Appolnlment of New Counsel hearing to the date the
    PCRA would be time-barred, the court granted Defendant's Motion fol' Permission to tile an
    Amended PCRA. Pa. R. Crim. P. 905(A) ("Amendment shall be freely allowed to achieve
    substnntial justice.") The Amended PCRA was filed November I 0, 2015.
    Given these dales, the court concludes that the PCRA was timely filed, and is properly
    within the court's jurisdiction.
    II. Merits of the Appeal
    Moving to the merits of the petition itself, however, the court is not as inclined to side with
    Defendant. As reci ted above, Defendant mises four issues, each sounding in the averred
    incffecti veness of Defendant's trial counsel.
    Each of the alleged errors are based in an allegation of ineffectiveness of counsel. Analysis
    of an ineffective assistance of counsel claim beings with
    the presumption that counsel rendered effective assistnnce. To
    obtain relief on a claim of ineffective assistance of counsel, a
    petitioner must rebut that presumption and demonstrate that
    counsel's performance was deficient, and that such performance
    prejudiced him. Strickland v. Washington, 
    466 U.S. 668
    , 687-91,
    (l 984). In our Commonwealth,              we have rearticulated
    the SIrick/and Cami's performance and prejudice i nqulry as a three-
    prong test. Specifically, a petitioner must show: (I) the underlying
    claim is of arguable merit; (2) no reasonable basis existed for
    counsel's action 01· inaction; and (3) counsel's error caused prejudice
    such that there is fl reasonable probability that the result of the
    proceeding would have been different absent such error.
    Commonwealth v. Pierce, 515 Pa. I 53, 158-59, 
    527 A.2d 973
    , 975
    ( 1987).
    7
    Commonwealth 11. Oltver,:-: A.3d -··, 
    2015 PA Super 261
     (Pa. Super. Ct. Dec. 14, 2015), quoting
    Commonwealth v. Dennis, 
    17 A.3d 297
    , 301 (Pa. 2011) (some internal citations omitted). Each
    prong must be met to carry a claim of ineffective assistance of counsel. 
    Id.,
     citing Commonwealth
    v. Hanible, 
    30 A.3d 426
    , 439 (Pa. 2011).
    To demonstrate prejudice, a petitioner must show that there is a reasonable probability that,
    but for counsel's actions or inactions, the result of the proceeding would have been
    different. Conunonwealth v. Mason, ·-- A.3d ---, 
    2015 WL 9485173
     (Pa. Dec. 29, 2015),
    citing Strickland, 
    466 U.S. at 694
    ; Co111111011wealtlt v. Laird, 1 I 
    9 A.3d 972
    , 978 (Pa. 2015). "Where
    matters of strategy and tactics me concerned, '[a] finding that a chosen strategy lacked a reasonable
    basis is not warranted unless it can be concluded that   fill   alternative not chosen offered a potential
    fat· success substaut ially greater than the course actually pursued.'?' 
    Id.,
     quoting Commonwealth       I'.
    Spotz, 
    84 A.3d 294
    , 311-12 (Pa. 2014), citing Conunonwealth v. Colavita, 606 Pa. at 2 I, 
    993 A.2d 874
    , 887 (Pa. 2010).
    The court will apply this standard to the four distinct claims raised in Defendant's PCRA.
    a. Trial counsel's effectiveness in failing to object lo the trial testimony of Dr. Adams which
    referred to general information about concussions and other "expert" testimony when the
    Court had previously ruled that this type of evidence would 1101 be presented.
    Defendant next contends that Atty. White should have objected to Dr. Adams providing
    testimony regarding the long-term effects of the concussion sustained by the victim.
    During the PCRA hearing, Atty. White noted that at the time, the particular ADA involved
    in this case had certain habits that could be frustrating to defense attorneys, leading Atty. White to
    file a motion in llmine prior to jury selection, to ensure he was not blindsided by any witnesses,
    Transcript (?/'PCRA Hearing, pp. 45-46, JI. 23-9. On the day of'jury selection, at the mini-call in
    front of the I-Ion. Judge   Boyer, the two children's counselors would be excluded from trial, for
    failure   to produce expert reports. However, the concussion "expert," Dr. Adams, was allowed to
    8
    testify as a fact witness. Id. at pp. 46-47, 25-2. As the emergency room doctor who saw the victim
    when she was admitted, he clearly had the ability to testify as to what he witnessed that night, and
    the diagnosis, and was able to use the emergency room report to that effect.
    At trial, Defense counsel learned that Dr. Adams was a certified boxing consultant, medical
    consultant, and/or referee. Id. at p, 49, II. 1-3. Dr. Adams was cross-examined by Atty. White, and
    Atty. White and the Court discussed whether Dr. Adams could testify as to the concussions,
    especially where the emergency room doctor, as here, has the specialized knowledge regarding
    concussions. kl. at p, 49, II. 5-11. Partly as a matter of strategy, Atty. White wanted to allow the
    testimony to show that, even though Dr. Adams was familiar with the range types of concussions,
    the one suffered by victim was comparatively mild, not requiring an overnight stay or wake-up
    procedure." Id. at p. 49, 14-19. Atty. White stated in the PCRA hearing that he used this testimony
    to fit in with the general defense narrative that the injury suffered was not "serious" and would not
    support the aggravated assault charge. Id. at p. 49, II. 21-25.
    Defendant specifically challenges Atty. White's failure to object to Dr. Adams testimony.
    However, Atty. White has articulated the trial strategy wherein he actually attempted to use the
    testimony to his advantage, in a manner which fit in with the defense's contention that the injuries
    were not serious, and did not support the aggravated assault charge. The testimony shows that
    there would be       110   real basis for objecting to this testimony, and in fact, had Atty. White objected
    at trial, this Court would have overruled that objection.
    Consequently, Atty. White's failure to object to the testimony of Dr. Adams did not render
    his advocacy ineffective, and Defendant's claim is denied.
    b. Trial counsel 's effectiveness in not explaining to Defendant the exact criminal charges lodged
    agains! him, the maxhnum prison terms and fines of said charges if the case was to head (o
    4   The wake-up procedure is where a concussion victim is awoken every hour following discharge from the hospital.
    9
    Mal, the exact criminal trial process in Venango County as ii relates to the entry of a
    negotiated plea, and the details of any plea offer made by the Commonwealth lo the Defendant.
    Next, Defendant alleges Atty. White was ineffective in discussing the nature of the exact
    criminal charges, the maximum prison terms mid fines, the criminal process relating to the plea,
    and the plea offer details.
    Pennsylvania appellate courts have articulated that it can be ineffective assistance of
    counsel when the conduct of the attorney leads to the defendant rejecting a plea deal the defendant
    would hove otherwise accepted. For example, in Commonwealth            \I.   Steckley, the Superior Court
    stated,
    Under the terms of the Commonwealth's proposal, Steckley would
    plead guilty to each of the crimes charged, and the Commonwealth
    would reconuneud that the trial court impose an aggregate sentence
    of two to six years' incarceration. Because this arrangement did not
    involve the dismissal of charges 01· a negotiated sentence that would
    bind the trial court upon its acceptance of the plea, it is difficult to
    imagine any reason why the court would have rejected it. It defies
    common sense to believe that the trial court, for no apparent reason,
    would have rejected the plea bargain and ordered the parties to
    endure a lengthy and expensive trial. Cf Commonwealth v. Cltaztn,
    
    873 A.2d 732
    , 737 (Pa.Super.2005) (rejecting ineffective assistance
    of counsel claim where the trio! judge explicitly stated that he would
    not have accepted petitioner's guilty plea where the agreement called
    for a negotiated sentence of four to eight years' imprisonment).
    Commonwealth. v. Steckley, 
    128 A.3d 826
    , 835 (Pa. Super. Ct. 2015). The Superior Court there
    found that the conduct of the attorney lead to the defendant rejecting             fl   deal he would have
    ordinarily accepted. This is in contrast to a situation such as Chazin, where the court found no
    prejudice where the trial court would not have accepted the plea agreement between the prosecutor
    and defendant. Chazln, supra, 873 A.2d at 737.
    One of the prongs of the test as enumerated above is that the alleged error must have caused
    prejudice to tile Defendant. In this situation, the Court does not find that such prejudice occurred.
    10
    During his testimony, Atty. White relayed that he discussed the plea agreement with Defendant.
    Understanding      the nature of the DA's office at the time, Atty. White understood that the plea offer
    was not negotiable. Therefore,        when he discussed the plea with Defendant,       Atty. White was
    hamstrung regarding the plea agreement, because "the key was the aggravated assault. He could
    not factually admit to that in order to get the plea through." Transcript of PCRA Hearing, p. 43-
    44, 11. 25-1. Therefore, the court would not accept the plea agreement, because Defendant would
    not be able to admit to the charges during the guilty plea colloquy.
    The tendered plea agreement included a charge of aggravated assault. This charge would
    include an intent by Defendant to cause serious bodily injury ("SBI"). As Atty. White discussed
    on direct examination, "That was something that .M1·. Ecklund indicated to me he could not make
    a factual admission on. He never intended to cause her serious bodily injury, nor did he think he
    attempted serious bodily injury." Transcript of PCRA Hearing, p. 43 11. 15-18. Defendant stated
    on cross "It was [the defense's] position that she wasn't - it wasn't a serious bodily injury." Id at
    p. 32, 11. 17-18. Instead, Defendant believed and could only admit in a guilty plea hearing that he
    had committed only simple assault and terroristic threats. Id. at p, 32, 11. 11-17.
    Additionally, when asked on cross why he rejected the plea deal, Defendant stated, "Yeah.
    We rejected it, as I said before, because of the intimidation of witnesses if I was found not guilty
    of aggravated assault I was told intimidation of witnesses would be dropped to the highest
    misdemeanor or highest charge item on the list." kl. at p, 32, 11. 7-10.
    Therefore, the court does not sec that Defendant was prejudiced by any alleged failure on
    Atty. White's part. If the information allegedly not relayed to Defendant were in fact
    communicated, that does not appear to change the fact that Defendant would not have been able
    to admit   lo   the factual basis for this Court to accept a guilty plea to aggravated assault. Unless
    11
    '   ~     .
    Defendant is arguing that in the context of more information about the severity of the crimes he
    would have been willing to perjure himself, this Court does not see where the prejudice arises.
    Therefore, the situation is vel'y similar to Chazin, supra, 873 A.2d at 737, where the court found
    no prejudice where it would have explicitly rejected the pica deal. Without the factual basis
    consistent with the clements of the plead-to charges established, this Court would likewise have
    rejected the proffered plea.
    Further, Defendant acknowledged        that as part of the defense's strategy, he and Atty. White
    looked towards the intimidation           charge, Where they felt they had a chance of defeating the
    aggravated assault charge at trial, arguing a lack of an SBJ and lack of intent to cause SBI, the
    intimidation charge would also be reduced to a misdemeanor.             This deliberate decision on the part
    of the defense was a calculated move in the hopes of reducing the eventual sentence to even less
    that as was offered in the plea deal. This Court will not jump to the conclusion of ineffective
    counsel when a trial strategy does not pan out, as appears to be the case here.
    As the well-established    law states, all prongs of the test for ineffective assistance of'counsel
    must be present for the Court to find in Defendant's           favor. Having not suffered prejudice, this
    prong is not met, and is fatal to Defendant's        claim.
    Other testimony adduced during the PCRA hearing indicates that Atty. White was indeed
    available to discuss with Defendant the trial procedures and other facets of the case, including the
    charges. Transcript of PCRA Hearing, p. 42-45. The Court finds Atty. White's testimony regarding
    his availability     and preparation     credible. On the arguments       that Atty, White was otherwise
    deficient for failing to discuss the trial procedure, maximum plea offer, and the like, Defendant's
    claims arc likewise denied, as they were not proved given the credible testimony of trial defense
    counsel.
    12
    c.   Trial counsel's effectiveness in not objecting when the District Attorney implied to the jWJ' that
    the victim could have stated that more crimes had occurred but she did not.
    Next, Defendant argues that Atty. White's failure to object to ADA Carbone's use of"rnpe"
    in closing statements constituted ineffective assistance of counsel. Defendant alleges that the use
    is consistent with the implication that Defendant could have been charged with greater crimes,
    including and namely rape, This would suggest to the jury to find Defendant guilty on the charged
    offenses, since Defendant already got a break from ADA Carbone in the form of reduced charges.
    The context of the use of the word "rape" is determinative      here. The word arose in the
    context of the statement by ADA Carbone attempting to bolster the credibility of the witness, and
    not, as Defendant argues, in an attempt to unfairly influence the jury, The context of the case as a
    whole did involve a "he-said-she-said"    component, in that only Defendant and the victim were the
    only "eye witnesses» to the assault itself. The children were within earshot but not see the assaults,
    Therefore, Atty. White during trial did try lo discredit the victim and her version of the assault.
    Once the victim's credibility was arguably discredited by Atty. White, ADA Carbone
    would then have the right, though perhaps more likely a duly, to attempt to rehabilitate the victim's
    credibility.   It is in this context that the word "rape" was used. ADA Carbone's          statement, in
    relevant context, was:
    I believe what she had to say. And the thing is that it doesn't benefit
    the victim by saying it's worse. In fact, if she wanted to get him in
    big, big trouble, she could have said, oh, he raped me. She didn't say
    that. She could have made it a lot more damming than she said. But
    what she did is she said it the way it happened.
    Transcript of PCRA Hearing, pg. 63, JI. 9-15. From this quote, it is abundantly clear that not only
    is ADA Carbone not implying rape could have been charged, but explicitly says rape was not even
    accused. ADA Carbone, this Court concludes, was not insinuating that Defendant committed more
    crimes, but instead was only arguing tha: if the victim was going to lie about the charges, she could
    13
    .
    have alleged a more serious criminal misconduct. While of course not necessarily being true, it is
    an argument that this Court has heard from prosecutors on multiple occasions.! and one this Court
    does not find inappropriate.
    Even had Atty. White objected to ADA Carbone's use of "rape» in his closing arguments,
    the Court would have overruled the objection. The Trial Court may have given a limiting
    instruction regarding ADA Carbone's use of "rape," but we concluded that there was nothing
    wrong with the AD A's argument in this case using that particular term. Accordingly, Atty. White's
    failure to object was not ineffective assistance of counsel.
    d. Trial counsel's effectiveness in 1101 having a psychological evaluatlon conducted to determine
    whether or 1101 Mr. Ecklund could be held legally culpable for his actions and whether he
    appreciated his actions and that they were wrong.
    Finally, Defendant contends Atty. White was deficient in his representation of Defendant
    for failing to have a psychological evaluation done on Defendant prior to trial. Defendant spent
    time as a civilian contractor in Iraq during wartime for six years prior to the assault. Defendant
    slates that as a result of his lime in Iraq and other parts of his life, "when someone says something
    to me, either I get angry right away or I act in a different way than someone who hasn't had the
    problems that I have had would act. I mean -- I mean, I'm just different." Transcript of PCRA
    Hearing, p. 18, ll. 4-7. Because of'that difference, Defendant wanted a psychological evaluation.
    During his PCRA testimony, Atty. White discussed that under the Pennsylvania application
    of the M'Naghten Rule, even Defendant's account of what happened would not entitle him to
    relief. Id. at p. 53, 11. 9- l I. That is, even assuming any mental condition Defendant alleged himself
    to have at the time of the assault, his available defenses would not change, and he would not have
    had any better chance of acquittal of aggravated assault, To this end, Atty. White did discuss with
    5
    Atty. White has testified that he has made the same argument In cases he's tried since becoming the DA.
    tronscrlpt of PCRA Hearing, p.     61l, II. 13·15.
    14
    •   I
    Defendant, and developed at trial, Defendant's service in Iraq in the civilian context, but this would
    . be the extent of helpfulness of his mental condition. Id. at p. 53, 11. 12-21. However, Atty. White
    determined I hat based on Defendant's admissions regarding striking the victim over the cell phone,
    actual defenses based on mental condition would not be available. lei. at p. 54, II. 3-11.
    The Court finds Ally. White's strategy to be competent and his testimony regarding the
    issue credible. Even though Defendant was at some point diagnosed with Post-Traumatic            Stress
    Disorder (11PTSD") while in the Venango County Jail, this, in-and-of itself would not have availed
    Defendant of any additional defenses. This is further compounded by the fact that Defendant was
    lucidly aware of his actions, and candidly admitted he was guilty of simple assault. This explained
    coherency would complicate an effort to establish a mental capacity defense, and therefore, Atty.
    White's determination     that the psychological   evaluation would be a waste of limited time and
    financial resources does not poi nt to ineffective assistance. Defendant's     theory was, "I Wt her,
    knocked her around somewhat but I did not seriously injure her not did T intent to." The jury
    acquitted     Defendant   of kidnapping   and aggravated    assault-Sllf   caused.   In the context of
    Defendant's     version of the facts, this was an effective defense. Therefore, the fourth claim of
    Defendant's PCRA likewise fails.
    Conclusion
    For the reasons discussed, supra, Defendant has failed to carry his burden to demonstrate
    that Atty. White rendered ineffective assistance as his trial counsel. For each of the four distinct
    claims, there is insufficient showing that Defendant was prejudiced          by Atty. White's tactical
    decisions, As the Mason court restated, simply because a trial tactic was not successful docs not
    guarantee the PCRA court finding the assistance was ineffective. Instead, there must be some
    alternative strategy that would have had a substantial potential for success greater than that of the
    15
    '   I
    (•
    strategy chosen. Herc, none of the objections Defendant charges Atty. White should have made
    would have had a substantially greater potential for success. Likewise, the psychological
    evaluation was a trial strategy which was not substantially less likely to succeed than getting the
    evaluation before trial. In terms of the plea den! offer, because Defendant could not have
    established the factual basis for the plead-to charges, there was no prejudice to Defendant.
    Accordingly, Defendant's PCRA petition is hereby DENTED.
    BY THE COURT,
    H. WILLIAM WHITE, Senior J.
    Specially Presiding
    cc:    DA
    Tina Fryling, Esq.
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