Com. v. Ice, C. ( 2018 )

J-A32044-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CRAIG DAVID ICE, :
:
Appellant : No. 265 MDA 2017
Appeal from the PCRA Order January 19, 2017
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003118-2011
BEFORE: OTT, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 06, 2018
Craig David Ice (Appellant) appeals from the January 19, 2017 order
that denied his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court offered the following summary of the evidence offered
at the trial that resulted in Appellant’s underlying convictions.
The victim, EA …, testified that she first met [Appellant] in
February 2007. [Appellant] was [the boyfriend of CA, who is EA’s
mother,] and he moved into CA’s home with EA shortly thereafter.
[Appellant] and CA married [on] May 23, 2010.
In the summer of 2009, CA and [Appellant] moved into a
blue house, when EA was twelve years old, which they remained
in for about one year. EA testified that after a couple of months
in the blue house, [Appellant] began to act and touch her
inappropriately. The first instance occurred when they were both
sitting on a couch. EA was doing homework while her mother was
at work. EA got up to get something and [Appellant] got up right
after her and pulled down her shorts past her knees. About a half
*Retired Senior Judge assigned to the Superior Court.
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hour later, while EA was lying on the couch watching TV,
[Appellant] stood between her and the TV and pulled down his
pants. EA immediately turned her head and [could not] tell
whether [Appellant] had pulled down his underwear. She ran
upstairs to her bedroom. She then went to her mother’s bedroom
because she could lock it. [Appellant] later came up to the room
and told her that he had only been “playing” and that “it wasn’t a
big deal.”
EA recounted a second incident at the blue house occurring
when she was twelve years old. EA testified that while her mother
was away, she was in [a] room with [Appellant] used for storage.
She was wearing an oversized shirt with a built-in bra and
[Appellant] suggested that EA fill the bra with aquarium stones
located in the room. EA filled in one side of the bra with stones
after which [Appellant] placed his hand into the bra and touched
her breast and nipple. She told him to stop and he quickly
removed his hand. [Appellant] told her he was only playing, that
it was no big deal and not to tell her mom.
In the summer of 2010, after they had married, CA and
[Appellant] moved with EA to a home on Cherrington Drive. EA
testified that a few days after the move she was unpacking with
[Appellant] while her mother was away. [Appellant] told her to
say the “F” word and EA refused. She recalled that [Appellant]
began to chase her, which she initially perceived as playful
behavior. She ran into a closet and laid down on the ground.
[Appellant] followed and kneeled down next to her. He first
touched her breasts under her shirt. He then tried to put his right
hand down under the top of her shorts. EA told him to stop and
grabbed a book from a nearby shelf and placed it in her pants,
blocking his reach. Undeterred, [Appellant] reached his right hand
up through the bottom of her shorts and over her underwear,
pinching EA’s vaginal area. EA stated that his hand remained
there for about a minute. During the incident [Appellant]
continued to try to convince EA to use the “F” word. EA stated
that she repeatedly told [Appellant] to stop and at one point
reached up and bit his left shoulder hard enough to leave a bruise.
She eventually yelled at him three or four times to “get the fuck
off of me” and he eventually did so.
EA also testified about a fourth incident, occurring at the
Cherrington Drive home. In the summer or early fall of 2010, EA
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got out of a shower from a bathroom connected to her bedroom,
after which [Appellant] knocked on her door and said he lost his
phone. EA volunteered to call his phone and discovered it on top
of her TV. [Appellant] told her [he] had been videotaping the dog
with it. EA, who suspected he had been videotaping her, indicated
that [Appellant] had no reason to have his phone in her room
noting she had never seen it there, that [Appellant] did not use
her charger, that she had never seen [Appellant] videotape the
family dog and that the family dog never spent time in her
bedroom. She nevertheless admitted that she could not tell if the
phone had been videotaping.
EA did not tell her mother about any of the four incidents
(pulling pants down near couch, touching breast in storage room,
touching breasts and vagina in closet and leaving phone in
bedroom) because she [did not] think her mother would believe
her. She testified that her mother had told EA that she was very
happy living with [Appellant] and EA [did not] want to upset that.
EA testified that her mother would generally take [Appellant’s]
side when there was conflict between EA and [Appellant]. EA also
testified she told no one else about any of the incidents at the time
they happened other than a close family friend, Shawna
Messersmith, whom she told about the phone in the bedroom.
She did not tell Messersmith about the other incidents because EA
assumed Messersmith would tell her mother, and her mother
would not believe her.
On December 10 or 11, 2010, CA informed EA and EA’s
grandmother that [Appellant] was having an affair. EA described
CA as distraught and that CA intended to kick [Appellant] out of
the house. While sitting with her grandmother, EA announced to
her grandmother that she (EA) was going to put [Appellant] in jail.
Her grandmother inquired as to why and EA confessed that
[Appellant] had hurt her (EA) and explained some of what
[Appellant] had done. The grandmother accused EA of lying,
which EA denied. They both approached CA and EA told her
mother that [Appellant] had hurt her. EA decided to tell her
mother because she thought her mother now saw [Appellant’s]
“true colors” and would believe her. CA called the police
immediately and EA was interviewed that evening and told police
about the incidents….
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After police were notified, EA was scheduled for an interview
at the Children’s Resource Center (“CRC”) for December 16, 2010.
In the days leading up to the interview, CA asked EA to provide
specifics about what [Appellant] did to her. EA sensed her mother
did not believe her and asked her mother if she missed [Appellant]
and wanted to get back together with him. CA admitted she did.
EA decided that since her mother did not believe her and because
she wanted to protect her mother and make her happy, EA would
lie during the CRC interview. EA followed through and denied all
the allegations at the interview, which was videotaped and later
played at trial for the jury. EA told the CRC interviewers that she
initially accused [Appellant] of touching her because she was mad
after hearing about [Appellant’s] affair and wanted revenge. She
also told them she was motivated to make up the allegations
because she [did not] want a father figure in her life and liked
having just her mother. Finally, she claimed she [did not] want
to see an innocent man put behind bars. EA told the interviewers
that she was prompted to make up the allegations about being
touched from having read it in a book. EA testified at trial that
her mother never told her what to say to the CRC interviewers.
EA’s CRC interview was watched on closed circuit TV by Sue
Kolanda, the Coordinator of the Child Abuse Prosecutor Unit in the
Dauphin County District Attorney’s Office, and by Detective
Michael Mull of the Susquehanna Township Police, who was the
investigating officer. Kolanda testified that she had been told prior
to the interview that EA might recant her allegations. Kolanda
watched the video and was concerned because EA was “robotic,”
exhibiting a very flat affect. After the interview, she and Detective
Mull sought out EA. Kolanda told her she was concerned for her.
Kolanda asked EA a number of specific questions about the book
EA had mentioned in her interview, including where, when and
how she got it. Kolanda stated that EA became more nervous with
each question she was unable to answer[,] and Kolanda believed
there was no book. Kolanda also asked about a comment EA
made during the CRC interview, which was that EA said
[Appellant] makes her mom happy. Kolanda told EA that she was
worried for her since EA may be going back to the same situation
and live with [Appellant] again. According to Kolanda, EA then
admitted that her mother and [Appellant] were discussing getting
back together. Kolanda told EA to contact her if her allegations
against [Appellant] were “legit.”
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EA testified that Kolanda and Detective Mull had approached
her following her CRC interview and that Kolanda asked her the
name of the book she read about inappropriate touching and from
which library she got it. EA admitted she had no answers and
assumed Kolanda and Detective Mull knew she had lied to the CRC
interviewers.
A few days after the CRC interview, EA testified at a
protection from abuse (“PFA”) hearing in Dauphin County. She
testified at the hearing that she had lied about [Appellant]
touching her, explaining that she was mad at [Appellant] for
cheating on her mother. EA explained at trial that at the time,
her mother was trying to get back together with [Appellant], which
is why she lied at the PFA hearing.
EA testified that her mother remained very upset and sad
about her situation with [Appellant] throughout the holidays,
which made EA sad and hurt for her mother. Around this time,
CA attempted suicide over her situation with [Appellant]. EA then
went to live with Shawna Messersmith for a few weeks in early
January 2011. EA testified that while staying with Messersmith,
she confessed the details of the incidents with [Appellant].
Messersmith testified that she was a close friend of CA[],
had known EA since she was an infant and that EA spent
considerable time in her home. She recalled that a few weeks
prior to December 2010 (when EA initially brought her allegations
against [Appellant]), EA told her about the incident where
[Appellant] pulled down his pants and that EA had turned away
from him. EA also told her about [Appellant] suspiciously leaving
his phone in her room, pointed at her bathroom door.
Messersmith recalled that EA told her to promise she would not
tell her mother. Messersmith claimed she was considering going
to authorities when EA’s initial allegations came out. Messersmith
also testified that on one occasion she saw a bruise on
[Appellant]’s shoulder which [Appellant] claimed was caused by a
bite from the family dog but which to Messersmith did not look
like a dog bite.
Messersmith testified that after CA attempted suicide and
during the time EA was living with her, EA told her about the four
incidents with [Appellant]. These included the two [Messersmith]
had already heard about (pulling pants and phone in bedroom), in
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addition to the two others, involving [Appellant] reaching into
[EA’s] bra to pull out rocks and also trying to reach into her shorts.
Detective Mull testified that sometime after the CRC
interview he received information from people close to EA that her
initial report to the police was true. He contacted CA and they set
up a meeting with EA for February 9, 2011 at the police station.
Detective Mull later received a message that EA was unable to
make the appointment and he and Kolanda volunteered to meet
at [EA’s] home. Upon their arrival, they found EA locked in her
bathroom, refusing to open the door or respond to them.
Detective Mull managed to open the lock and they found EA sitting
in a ball in the bathroom closet, sobbing.
Detective Mull left to attend to CA and Kolanda stayed in the
bathroom with [EA], trying to comfort her. Kolanda talked with
EA for a while and was able to get her to sit up. EA’s grandfather,
with whom EA has a good relationship, joined them. He told EA
she needed to tell the truth, whatever it was. EA got up from the
closet floor and hugged her grandfather. Kolanda told EA they
needed to move forward at which point EA told her that
[Appellant] had done things to her. EA agreed to come out and
talk. Kolanda and Detective Mull testified that EA’s demeanor
changed dramatically after she agreed to talk. EA described the
details of the incidents to Kolanda and Detective Mull, the same
ones she had initially described for police in December 2010.
EA testified that when Kolanda and Detective Mull arrived at
her home she hid in her bathroom closet and locked the door. She
testified that she intended “to keep lying” and deny [Appellant]
had touched her in order to protect her mother, who still wanted
to get back together with [Appellant]. EA testified, however, that
after Kolanda talked with her and made her feel comfortable, she
admitted to Kolanda she had lied at the CRC interview.
Following trial, the jury found [Appellant] to have
inappropriately touched EA as she described for two of the four
incidents, including the incident with the aquarium rocks in the
storage room when EA was twelve years old and the [incident] in
the bathroom closet when EA was thirteen years old. The jury
found [Appellant] not guilty of crimes related to the incident where
[Appellant] pulled down both EA’s and his own pants near the
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couch as well as the incident where [Appellant] allegedly
videotaped EA in her room with his phone. …
PCRA Court Opinion, 1/19/2017, at 2-6 (quoting Trial Court Opinion,
5/2/2013, at 2-7) (footnote and citations omitted).
Following a sentencing hearing, the trial court found Appellant to be a
sexually violent predator, and sentenced him to an aggregate term of 25 to
50 years of incarceration.1 This Court affirmed Appellant’s judgment of
sentence, finding no merit to his challenges to the constitutionality of his
mandatory minimum sentences, the weight of the evidence, the admission of
Kolanda’s testimony, or the admission of Messersmith’s testimony.
Commonwealth v. Ice, 102 A.3d 536 (Pa. Super. 2014) (unpublished
memorandum). On October 7, 2014, our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Ice, 101 A.3d 785 (Pa.
2014).
1 Given that Appellant had a prior conviction for a sexual offense (he pled
guilty to incest in 2001), the aggregate sentence was composed of the
following terms: “indecent assault of person less than thirteen years old
(Count 2), 27 to 84 months; indecent assault of person less than sixteen years
old (Count 3), 27 to 84 months consecutive to Count 2; unlawful contact with
a minor (Count 4), a mandatory 25 to 50 years concurrent with Count 2;
corruption of minors (Count 5), 16 to 84 months consecutive to Count 2;
corruption of minors (Count 6), 16 to 84 months consecutive to Count 2; and
unlawful contact with a minor (Count 8), mandatory 25 to 50 years concurrent
with Count 4.” PCRA Court Opinion, 1/19/2017, at 1-2. The trial court, upon
consideration of Appellant’s post-sentence motion, vacated one of the
indecent-assault sentences and resentenced him to 12 to 24 months on that
count; it did not impact his aggregate sentence. Id. at 6.
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Appellant timely filed a PCRA petition on June 3, 2015. “After a number
of delays, including the replacement of [Appellant’s] first two court-appointed
attorneys, [Appellant’s] third PCRA attorney filed a supplemental petition.”
PCRA Court Opinion, 1/19/2017, at 7. Therein, Appellant claimed, inter alia,2
that trial counsel was ineffective in (1) failing to discover that Shawna
Messersmith had criminal charges pending against her when she testified at
Appellant’s trial; and (2) not calling Cynthia Dickason and Bonnie Aulthouse
as exculpatory defense witnesses. PCRA Petition, 2/19/2016, at ¶ 17.
The PCRA court held a hearing on the petition on July 15, 2016.
Appellant testified, and also offered testimony from Aulthouse, Dickason, and
Jessica Bush, Appellant’s trial counsel. Relevant to this appeal, the
Commonwealth called John Canavan, the ADA who prosecuted Appellant’s
case, and Phillip Kirchner, the ADA who prosecuted Messersmith’s case. At
the close of the hearing, the PCRA court took the matter under advisement.
By order and accompanying opinion entered January 19, 2017, the PCRA
court denied Appellant’s petition. Appellant timely filed a notice of appeal.
The PCRA court did not order Appellant to file a statement of errors complained
of on appeal; it did file a statement pursuant to Pa.R.A.P. 1925(a) directing
this Court to its January 19, 2017 opinion for the reasoning behind the
appealed-from order. Appellant presents the following issue for our review:
2Appellant does not argue on appeal that the PCRA court erred regarding its
denial of any of the other claims raised in the petition.
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Whether Appellant was deprived of his constitutional right to
effective assistance of counsel when his trial attorney failed to
properly investigate exculpatory information and failed to call two
exculpatory witnesses in violation of Appellant’s right to effective
counsel under the 6th amendment to the United States
constitution as well as article I section 9 of the Pennsylvania
constitution?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
“This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error.” Commonwealth v.
Rizvi, 166 A.3d 344, 347 (Pa. Super. 2017).
Appellant’s arguments all involve claims of ineffective assistance of
counsel. Counsel is presumed to be effective. Commonwealth v. Simpson,
112 A.3d 1194, 1197 (Pa. 2015). “To establish ineffectiveness of counsel, a
PCRA petitioner must show the underlying claim has arguable merit, counsel’s
actions lacked any reasonable basis, and counsel’s actions prejudiced the
petitioner. Prejudice means that, absent counsel’s conduct, there is a
reasonable probability the outcome of the proceedings would have been
different.” Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013)
(citations omitted). “A failure to satisfy any prong of the ineffectiveness test
requires rejection of the claim of ineffectiveness.” Commonwealth v.
Daniels, 963 A.2d 409, 419 (Pa. 2009).
We first consider Appellant’s claim that trial counsel should have
discovered Shawna Messersmith’s pending criminal charges prior to her
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testifying against Appellant. Appellant contends that his claim has arguable
merit because counsel in fact failed to discover that Messersmith had charges
pending against her, the most serious charges against her were dropped
shortly after she testified against Appellant, and counsel could have
impeached her by questioning her about her motive for cooperating with the
Commonwealth. Appellant’s Brief at 9. Appellant further contends that there
was no reasonable basis for counsel to rely upon the Commonwealth’s
representation that it lacked exculpatory information3 and pursue an
impeachment strategy of sole reliance upon the contradictory statements EA
made in the CRC video. Id. at 10. Finally, Appellant contends he was
prejudiced because “it is possible that [] Messersmith’s unimpeached
testimony had a combined effect with other Commonwealth testimony in the
minds of the jurors due to spillover from these acquitted charges….” Id.
The PCRA court rejected Appellant’s claim. The court determined that
counsel had a reasonable basis for failing to conduct an investigation, as
“Messersmith was called as a last-minute witness,” PCRA Court Opinion,
1/19/2017, at 12, and “counsel reasonably relied upon the Commonwealth’s
representation to her that it would provide Messsersmith’s relevant criminal
3 In the PCRA court, Appellant pursued a claim under Brady v. Maryland,
373 U.S. 83 (1963), regarding the Commonwealth’s failure to disclose the
information about Messersmith’s pending charges. The PCRA court denied the
claim based upon lack of prejudice, see PCRA Court Opinion, 1/19/2017, at
11-14, and Appellant does not challenge that ruling on appeal.
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record history.” Id. at 14. Assuming arguendo that counsel lacked a
reasonable basis, the PCRA also determined that Appellant was not prejudiced
by counsel’s failure to discover the information:
Any impeachment evidence offered against Messersmith
concerning the pending charges, while relevant and admissible,
would not have undermined confidence in the outcome of this trial
had it been presented. First, the Commonwealth presented
credible evidence that Messersmith was not offered any type of
deal or any promise of leniency concerning her pending criminal
charges in exchange for testifying on the Commonwealth’s behalf.
According to the attorney who prosecuted Messersmith’s case and
accepted her guilty plea one week following her testimony in this
case, Messersmith was not offered a favorable plea deal but
instead received terms similar to those offered other persons
facing similar charges. He further testified that he was not
contacted by anyone in the District Attorney’s Office to treat her
leniently. Thus, had the defense impeached Messersmith about
the fact of her pending criminal charges, the Commonwealth
would have been able to respond with credible evidence, through
Messersmith or other rebuttal witnesses, that Messersmith was
not and would not be receiving any favorable treatment for
testifying on the Commonwealth’s behalf. Thus, the value of the
pending charge evidence for impeachment purposes was
negligible.
Second, Messersmith was offered by the prosecution
primarily to provide evidence that the victim EA made a statement
to her that was consistent with some of what EA originally told
police, before recanting. Messersmith indeed testified at trial that
a few weeks prior to December 2010, when EA initially brought
her allegations against [Appellant], EA confessed to her about the
incident where [Appellant] pulled down the victim’s pants and
then his own pants near the couch and the other incident where
[Appellant] suspiciously left his phone in EA’s room. Notably,
[Appellant] was acquitted of all charges related to these two
incidents. Instead, [Appellant]’s convictions arose from two other
incidents as alleged by EA; one where [Appellant] reached into
her bra in the storage room and touched her breast and the other
where he touched her breasts and reached into her shorts in the
closet. Messersmith offered no prior consistent statement
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testimony with regard to those incidents. Thus, the jury appears
to have found EA’s testimony, standing alone, sufficiently credible
concerning these events and did not rely upon any testimony
offered by Messersmith in finding [Appellant] guilty.
PCRA Court Opinion, 1/19/2017, at 13-14 (citations omitted).
The PCRA court’s factual determinations are supported by the record.
We discern no error of law or abuse of discretion in its conclusions that counsel
reasonably relied upon the Commonwealth’s representations, and that
Appellant failed to prove the prejudice prong of his claim. Appellant was
acquitted of the charges to which Messersmith’s testimony was relevant.
Appellant’s speculation that “it is possible” that her testimony could have
impacted the jury’s decision on the other charges is insufficient to meet his
burden of proving that a different outcome is probable. See, e.g.,
Commonwealth v. Burkett, 5 A.3d 1260, 1272 (Pa. Super. 2010)
(“Prejudice is established if there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (internal quotation marks and citations omitted)). Therefore,
we hold that Appellant has failed to establish his entitlement to relief from this
Court on his first claim.
Appellant’s remaining arguments concern trial counsel’s failure to call
Bonnie Aulthouse and Cynthia Dickason as witnesses in his defense. The
following legal principles apply.
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To be entitled to relief on a claim of ineffectiveness for
failure to call a witness, [an] appellant must demonstrate [that]:
[1.] the witness existed, [2.] was available, and [3.] willing to
cooperate; [4.] counsel knew or should have known of the
witness; and [5.] the absence of the witness’s testimony
prejudiced [the] appellant. A PCRA petitioner cannot succeed on
such a claim if the proposed witness’[s] testimony would not have
materially aided him. In such a case, the underlying-merit and
prejudice prongs of the [ineffective assistance of counsel] test
logically overlap. To show prejudice, the petitioner must
demonstrate that there is a reasonable probability that, but for
counsel’s allegedly unprofessional conduct, the result of the
proceedings would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.
Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016) (internal
quotation marks and citations omitted).
The PCRA court offered the following summary of the testimony offered
at the PCRA hearing regarding this claim.
Bonnie Aulthouse testified that she is a friend of [Appellant]
and has known him for about five years. She claimed that prior
to trial, while in her home, she overheard EA and EA’s mother CA
discussing the allegations. Aulthouse claims she heard CA say
that EA “lied on the stand.” Aulthouse also claimed hearing at the
same time EA admit that she lied. Aulthouse also submitted an
affidavit in preparation for the PCRA proceeding, in which she
wrote: “I overheard the mother state that both she and the
complaining witness [EA] lied because they were mad at
[Appellant] for having an affair.”
Cynthia Dickason, who was having an affair with [Appellant]
immediately preceding his arrest, testified that the morning after
CA obtained an emergency PFA order against [Appellant], CA
called him at a hotel where he was staying with Dickason. She
overheard CA tell [Appellant] that “I have got you by the balls,
motherfucker.” She also saw electronic messages sent between
them in which CA wrote of her desire to go through marriage
counseling and threatened to either bring charges or make them
go away if [Appellant] did or didn’t do as she wanted. She
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claimed that shortly before trial, she told [Appellant’s] attorney
about this information but that the attorney did not interview her
or seek more details.
***
[Appellant’s] trial attorney Bush testified that in the course
of representing [Appellant], he alerted her about Bonnie
Aulthouse. According to what [Appellant] told her, Aulthouse
would only be able to provide information concerning [Appellant’s]
having an affair with Cynthia Dickason and that CA wanted to get
back together with him. Given this was not new information, Bush
decided not to interview Aulthouse. Bush did, however, contact
Dickason numerous times via phone and email and discussed the
case “in great detail.” Bush decided against calling her as a
witness since the only information she would offer was basically
that CA was angry at [Appellant] for having an affair, which was
not a contested point.
Bush denied ever having been told by anyone, including by
[Appellant], that Aulthouse and Dickason each claimed to have
heard EA say prior to trial that she was lying. …
PCRA Court Opinion, 1/19/2017, at 9-10 (citations omitted).
The PCRA court held that counsel had a reasonable basis for failing to
call Dickason as a witness, determining that Dickason had not told counsel
Dickason overheard EA say that Appellant never sexually assaulted her. See
PCRA Court Opinion, 1/19/2017, at 15 (“This court [] finds credible trial
counsel’s PCRA testimony that Dickason did not divulge to her that she
overheard EA say at some unknown time prior to trial that she was lying about
the sexual assault allegations against petitioner. Similarly, the court finds
Dickason’s PCRA testimony, that she told Bush about such an event[,] not
credible.”).
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Similarly, the PCRA court found that, because counsel reasonably
believed that Aulthouse had nothing to add to the defense, she had a
reasonable basis for failing to interview her. See id. at 16 (“According to
Bush, [Appellant] never apprised [Bush] that Aulthouse had any relevant
information concerning EA’s allegations. According to Bush, [Appellant] told
her only that Aulthouse had information that [Appellant] was having an affair
with Cynthia Dickason and that CA wanted to get back together with him even
after learning about the affair. This was information already known by
Attorney Bush and she thus reasonably decided not to interview Aulthouse.”).
The PCRA court further held that Appellant was not prejudiced by counsel’s
failure to interview Aulthouse, because her testimony would not have helped
the defense.
At the PCRA hearing, Aulthouse initially testified that at some
undisclosed date prior to trial, she was in her own house when she
overheard the victim EA and her mother CA discussing the
allegations against [Appellant]. According to Aulthouse, she
heard CA say that EA “lied on the stand.” Prior to trial, the only
time EA was “on the stand” would have been at the PFA hearing.
At the PFA hearing, EA testified that none of the sexual assault
allegations she made against [Appellant] were true. Thus, a
reasonable interpretation of Aulthouse’s PCRA testimony is that
what she heard was the victim’s mother state her belief that EA
was lying when she denied the sexual assault allegations while “on
the stand” at the PFA hearing. This evidence is certainly not
favorable to [Appellant]. Instead, it would have corroborated EA’s
testimony that she lied during the PFA hearing (and also at the
CRC interview).
Similarly, Aulthouse testified that during the same event
(when she was in her home overhearing the conversation between
EA and CA), she heard EA herself admit she lied. This was not
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credible testimony inasmuch as in her PCRA affidavit, she made
no claim whatsoever that she heard EA say anything. Instead, in
her affidavit, Aulthouse said only that she overheard CA state that
both CA and EA were lying about the allegations. In any event,
even if Aulthouse heard EA herself admit to lying, the PCRA record
of Aulthouse’ s testimony does not clearly indicate about what EA
was allegedly lying. A reasonable interpretation of Aulthouse’s
PCRA testimony is that EA was affirming the same thing her
mother was overheard saying inasmuch as it was part of the same
conversation; that is, that EA lied “while on the stand” at the PFA
hearing. Again, such evidence is not favorable to [Appellant] but
would have instead bolstered EA’s testimony. Finally, to the
extent Aulthouse accurately heard both CA and EA admit to lying
about the allegations, such evidence is of little relevance
concerning what CA said since she was not a witness at trial.
Concerning EA, that EA lied at some point about her allegations
against petitioner was not new information and would have been
merely cumulative.
Id. at 16-17.
Ignoring the PCRA court’s credibility determinations, Appellant argues
that there “is no doubt that the first four elements” of the test for ineffective
failure to call a witness have been established. Appellant’s Brief at 11. He
also contends that, despite the PCRA court’s factual findings, he has proven
the prejudice prong because both witnesses “stated to trial counsel they could
testify of their knowledge that the complaining witness and her mother lied
about [] Appellant to exact revenge for his affair,” and “it is difficult to see
how these two witnesses’ testimony questioning the complaining witness’[s]
credibility would not have helped strengthen [] Appellant’s case.” Id.
Appellant has failed to convince us that the PCRA court erred or abused
its discretion. Because they are supported by the record, we will not reverse
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the PCRA court’s credibility determinations. Commonwealth v. Santiago,
855 A.2d 682, 695 (Pa. 2004) (“We will not disturb the credibility
determination of the PCRA court.”). Moreover, it was Appellant’s burden to
prove that the outcome of the trial would have been different had the
witnesses testified, not that he merely would have had a stronger case. The
constitution requires counsel to offer effective assistance; “optimal
representation is not required either by the constitution or common sense.”
Commonwealth v. Eichinger, 108 A.3d 821, 846 (Pa. 2014) (internal
quotation marks and citation omitted). Appellant’s witness claims do not merit
relief from this Court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2018
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