Com. v. Wheeler, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW WHEELER :
:
Appellant : No. 488 EDA 2021
Appeal from the PCRA Order Entered February 10, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0006522-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 4, 2021
Matthew Wheeler appeals from the order, entered in the Court of
Common Pleas of Bucks County, denying his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
The PCRA court set forth the underlying facts of the case as follows:
In the fall of 2012, [E.C.] (Victim) was twelve years old and living
half of the time with her mother, [] (Mother), and [] half [] with
her father, [] (Father). Victim’s parents divorced outside of court
and began the fifty-fifty custody arrangement when Victim was
about three years old. Around October-November of 2009, after
six months of dating, [Wheeler] moved in with Mother. At some
point in August of 2012, [Wheeler] was fired from his job at a
nuclear power plant for abusing alcohol, [which] escalated
[Wheeler]’s drinking.
[D]uring the fall of 2012, [Wheeler] entered Victim’s bedroom
while heavily intoxicated and sat down on her bed. [According]
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* Retired Senior Judge assigned to the Superior Court.
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to Victim, [Wheeler] slid his hand down Victim’s back . . . then
pulled down the front of Victim’s pajama pants, placed that hand
on Victim’s knee and ran it up her thigh [and] eventually digitally
penetrated her. At the same time, with his other hand, [Wheeler]
unzipped his jeans and masturbated. [Wheeler] continued [his
actions] for about twenty minutes, until [he] ejaculated, [] stood
up[,] and left Victim’s room.
In September of 2012, [Wheeler] left Victim’s household at
Mother’s request due to several reasons, [including, inter alia,
Wheeler’s] alcohol consumption. In March of 2016, Victim
informed Mother that [Wheeler] had molested her after [Victim]
f[ou]nd[] out that Mother [considered permitting Wheeler] back
around the house. [Despite Victim’s disclosure of Wheeler’s
assault to Mother,] Mother continued seeing [Wheeler]. However,
around November of 2016, Mother [sought therapy services for]
Victim [] with James P. Delpino[, a licensed therapist], who had
previously [provided services to] Victim [between] forty to fifty
times since 2003 following Mother and Father’s divorce. It took
Victim several months to discuss [Wheeler’s actions with Delpino],
and, despite being a mandated reporter, [] Delpino did not
immediately report [Victim’s] allegations[ on the theory that]
trauma affects an affected person’s memory.
On May 18, 2017, Victim texted Mother that she was “fairly
certain” she was going to be kicked out of Father’s house after she
received several “mean” text messages from Father indicating
that Victim was no longer welcome at his house, as well as a
picture of her belongings in the trash. At that time, Father, who
was extremely verbally abusive to Mother and Victim, had made
it clear that he “hated” [Wheeler]. The day after she received
those texts [from Father], Victim told Father that [Wheeler] had
molested her back in 2012 and Father took Victim back into his
house.
On May 22, 2017, Father set Victim up with a different therapist,
Deborah Meyrowitz-Weiss[.] Victim once again recounted the
incident with [Wheeler to Weiss]. The next day,[] both [] Weiss
and [] Delpino reported Victim’s statements to ChildLine. A few
days later, Detective Peter Stark and Jennifer Lannetti, an
investigator for Children and Youth Services (CYS), [visited]
Victim’s school and discussed the specifics of the ChildLine report
with Victim.
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PCRA Court Opinion, 4/19/21, at 1-3 (internal citations and footnote omitted;
edited for clarity).
Northampton Township Police arrested Wheeler on August 30, 2018. On
June 21, 2019, following a three-day trial, a jury convicted Wheeler of
aggravated indecent assault of a child, aggravated indecent assault without
consent, aggravated indecent assault of a person less than 16, indecent
assault without consent of other, indecent assault of a person less than 13,
and indecent exposure.1
On September 30, 2019, the court sentenced Wheeler to a period of
sixty to one-hundred-twenty months’ state incarceration, which sentence fell
in both the mitigated and standard ranges. The court awarded Wheeler credit
for time served, ordered him to comply with sexual offender registration and
supervision, prohibited him from contacting Victim, and ordered him to pay
$700 in restitution. Paul G. Lang, Esquire, represented Wheeler at trial, and
Todd Mosser, Esquire, represented Wheeler for post-trial and direct appeal
matters.
On October 11, 2019, Wheeler filed a post-sentence motion, challenging
the weight of the evidence, which the court denied as untimely on October
31, 2019. On November 12, 2019, Wheeler filed a notice of appeal; however,
on April 30, 2020, Wheeler withdrew the appeal. On July 1, 2020, Wheeler,
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1 See 18 Pa.C.S.A. §§ 3125(b), 3125(a)(1), 3125(a)(8), 3126(a)(1),
3126(a)(7), 3127(a), respectively.
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through Sara M. Webster, Esquire, filed a PCRA petition requesting the grant
of a new trial, or discharge, on seven different grounds.
On October 29, 2020, the PCRA court held an evidentiary hearing on
Wheeler’s petition. Attorney Lang, along with six other witnesses, testified at
the hearing. On February 10, 2021, the PCRA court issued an order denying
Wheeler’s PCRA petition. On February 25, 2021, Wheeler filed a notice of
appeal. Both Wheeler and the court subsequently complied with Pa.R.A.P.
1925.
On appeal, Wheeler raises the following issues for our review:
1. The PCRA court erred in dismissing the PCRA petition and
denying the relief sought, a new trial, as the issues raised by
[Wheeler] in his [petition] are all issues of arguable merit; []
counsel had no reasonable basis for his action or inaction; and[,]
the PCRA court applied erroneous legal standards as to every
claim. The specific errors made by [Attorney Lang] are:
a. Failing to move in limine to preclude[,] or object[,] when
[trial witnesses] testi[fied] regarding [Victim]’s character as
an honest person who does not lie and [Victim’s] numerous
inadmissible prior consistent statements.
b. Eliciting information that [Wheeler] consulted with
counsel upon hearing that this matter was being
investigated and thereafter failing to object when the
prosecutor asked questions highlighting that [Wheeler]
remained silent and never spoke with police.
c. Failing to object to impermissible [lay witness] testimony
as to how child victims of sexual abuse behave.
d. Failing to object to the prosecutor’s closing argument,
which included the prosecutor linking the instant case to
that of notorious offenders including Bill Cosby and Jerry
Sandusky, attacking defense counsel as trying to “distract”
the jury, and calling for jurors to convict [Wheeler] to permit
Victim to begin to “heal.”
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2. The prejudice suffered by [Wheeler] was both individual and
cumulative and the PCRA court erred in finding no prejudice.
Appellant’s Brief, at 6-7 (re-ordered for ease of disposition).
In order to be eligible for PCRA relief, the petitioner must prove by a
preponderance of the evidence that his conviction or sentence resulted from
one or more of the enumerated circumstances found in section 9543(a)(2),
which includes the ineffective assistance of counsel. 42 Pa.C.S.A. §
9543(a)(2)(i). A petitioner also must establish that his claims have not been
previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). An issue is
previously litigated if “the highest appellate court in which the petitioner could
have had review as a matter of right has ruled on the merits of the issue.” Id.
at § 9544(a)(2). “[A]n issue is waived if the petitioner could have raised it
but failed to do so before trial, at trial, . . . on appeal or in a prior state
postconviction proceeding.” Id. at § 9544(b). Additionally, “the failure to
litigate the issue prior to or during trial . . . or on direct appeal could not have
been the result of any rational, strategic[,] or tactical decision by counsel.”
Id. at § 9543(a)(4).
The well-settled appellate standard of review for the PCRA court’s grant
or denial of a PCRA petition is for an abuse of discretion:
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
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Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016).
Our Supreme Court has explained the method by which a PCRA
petitioner may prove an ineffectiveness of counsel claim:
To be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) he suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable
probability the result of the proceeding would have been different.
Commonwealth v. Chmiel, [] 30 A.3d 1111, 1127 (Pa. 2011)
(employing ineffective assistance of counsel test from
Commonwealth v. Pierce, [], 527 A.2d 973, 975-76 (Pa.
1987)). [See also Strickland v. Washington, 466 U.S. 668,
694 (1984).] Counsel is presumed to have rendered effective
assistance. Commonwealth v. Ali, [], 10 A.3d 282, 291 (Pa.
2010). Additionally, counsel cannot be deemed ineffective for
failing to raise a meritless claim. Commonwealth v. Jones, []
912 A.2d 268, 278 ([Pa.] 2006). Finally, because a PCRA
petitioner must establish all the Pierce prongs to be entitled to
relief, we are not required to analyze the elements of an
ineffectiveness claim in any specific order; thus, if a claim fails
under any required element, we may dismiss the claim on that
basis. Ali, at 291.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). See also
Commonwealth v. Housman, 226 A.3d 1249, 1260-61 (Pa. 2020).
“With regard to ‘reasonable basis,’ the PCRA court ‘does not question
whether there were other more logical courses of action which counsel could
have pursued; rather, [the court] must examine whether counsel’s decisions
had any reasonable basis.’” Commonwealth v. Bardo, 105 A.3d 678, 684
(Pa. 2014) (citing Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013)).
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“Where matters of strategy and tactics are concerned, a finding that a chosen
strategy lacked a reasonable basis is not warranted unless it can be concluded
that an alternative not chosen offered a potential for success substantially
greater than the course actually pursued.” Commonwealth v. Spotz, 84
A.3d 294, 311–12 (Pa. 2014) (citation, quotation marks, and brackets
omitted). “A court may not substitute its judgment for trial counsel’s. The
reasonableness of the choice may not be judged with the benefit of hindsight,
but only from trial counsel’s perspective.” Commonwealth v. Hawkins, 894
A.2d 716, 731 (Pa. 2006) (quoting Commonwealth v. Garrity, 500 A.2d
1106, 1110 (Pa. 1985)).
Wheeler first alleges that Attorney Lang was ineffective for failing to
object to testimony of specific instances of Victim’s character for truthfulness,
in violation of Treiber, supra at 457, and Pa.R.E. 608(b)(1), which prohibit
the use of evidence of specific instances of conduct to support or attack a
witness’s credibility. Wheeler argues that Attorney Lang had no reasonable
basis for failing to object to testimony by witnesses at trial that Victim was
very reliable, had no history of lying, and maintained good grades before and
after the sexual assault.2 Wheeler claims that Attorney Lang’s “post-hoc
justification” for permitting this testimonial evidence—that it would provide a
basis for arguing that nothing traumatic ever happened to Victim—has no
relation to Victim’s good grades, and provides “no explanation for allowing the
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2 See N.T. Jury Trial, 6/20/19, at 19, 71, 223.
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separate and distinct testimony and argument that [Victim] remains truthful.”
Appellant’s Brief, at 24. Essentially, Wheeler claims that evidence of the
absence of Victim’s behavior problems is unrelated to Victim’s character for
never lying, and therefore, Attorney Lang should have objected to witness
testimony that Victim had never lied. See Appellant’s Reply Brief, at 4.
Wheeler concludes that he suffered prejudice and relies on our Supreme
Court’s decision in Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992).
Wheeler is entitled to no relief on this claim.
The Commonwealth concedes—and we agree—that the testimony at
issue was presented to the jury in an improper form, see Appellee’s Brief, at
15, since it was not elicited in the form of reputation evidence. See Pa.R.E.
608(a); see also Treiber, supra at 457 (citing Pa.R.E. 608(b)(1)).
Nevertheless, we find that Attorney Lang had a reasonable basis for permitting
the testimony to be heard by the jury because that evidence advanced his
own theory of the case.
Specifically, Attorney Lang’s trial theory, which was consistent
throughout opening and closing argument, was that Victim’s sexual assault
allegations were “atypical,” did not make sense, and thus rendered the
allegations incredible, given that Victim maintained an exemplary record in
school and apparently suffered no outwardly noticeable negative
consequences. See N.T. Jury Trial, 6/19/19, at 14-15 (opening argument);
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id., 6/21/19, at 11 (closing argument).3 Attorney Lang relied on the
admission of evidence of Victim’s behavior before and after the alleged
assault, including evidence that Victim did not have any history of lying to the
adults in her life at the relevant times. Id. at 20 (closing argument). Attorney
Lang posited that Victim fabricated the allegations to persuade Father to
permit her to move back into his home after Father sent Victim the text
messages that indicated that she was no longer welcome there, since Victim
knew Father “hated” Wheeler. Id., 6/19/19, at 16, 18, 22 (opening
argument); id., 6/21/19, at 8-10 (closing argument). Attorney Lang further
theorized that Victim continued to allege the fabricated story because she felt
pressured to do so for fear of disappointing those around her. Id., 6/19/19,
at 19-22 (opening argument).
Here, we find that the PCRA court’s analysis that Attorney Lang had a
reasonable basis for not seeking to preclude the challenged testimony is
supported by the record. See Benner, supra; see also PCRA Court Opinion,
5/12/21, at 11. Indeed, we conclude that the admission into evidence of
testimony of Victim’s lack of negative expressed behavior, including that
Victim did not lie to the adults in supervisory roles in her life, reasonably
advanced Attorney Lang’s theory that the case was atypical of other child sex
assault cases and that the assault sub judice never took place. See Bardo,
supra. Moreover, contrary to Wheeler’s claim, the evidence elicited of specific
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3 The notes of testimony of the parties’ opening and closing remarks to the
jury are excerpted separately in the certified record.
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instances of the minor Victim’s lack of history of lying to the adult witnesses
demonstrated Victim’s behavior at the relevant times—i.e., prior to, and
after, Wheeler’s alleged sexual assault—and was not admitted merely for the
purpose of providing evidence that supported a finding that Victim had, and
maintains, a character for truthfulness. We find that, because the
reasonableness of Attorney Lang’s theory may not be judged by hindsight,
see Hawkins, supra, and it was, in fact, reasonable, Wheeler’s
ineffectiveness claim must fail. See Chmiel, supra; Ali, supra.
Next, Wheeler alleges Attorney Lang’s ineffectiveness at trial on the
basis that Attorney Lang failed to object to the admission of numerous
consistent statements made by the Victim, which she allegedly made after her
corrupting motive to fabricate arose. Wheeler suggests that Attorney Lang
should have objected to the admission of statements Victim made to two
therapists, to police, and Victim’s testimony at the preliminary hearing. See
Appellant’s Brief, at 28-30. Specifically, Wheeler claims these now-challenged
statements were inadmissible pursuant to Commonwealth v. Hutchinson,
556 A.2d 370 (Pa. 1989), Commonwealth v. Bond, 190 A.3d 664 (Pa.
Super. 2018), and Pa.R.E. 613. Wheeler is not entitled to any relief on this
claim.
Pennsylvania Rule of Evidence 613(c) governs the admissibility of a
witness’s prior consistent statements for rehabilitation purposes, and states:
(c) Witness’s Prior Consistent Statement to Rehabilitate.
Evidence of a witness’s prior consistent statement is admissible to
rehabilitate the witness’s credibility if the opposing party is given
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an opportunity to cross-examine the witness about the statement
and the statement is offered to rebut an express or implied charge
of:
(1) fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which has
been charged existed or arose; or
(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent
statement supports the witness’s denial or explanation.
Pa.R.E. 613(c). Further, the comment to the rule clarifies that
[Rule] 613(c)(2) is arguably an extension of Pennsylvania law, but
is based on the premise that when an attempt has been made to
impeach a witness with an alleged prior inconsistent statement, a
statement consistent with the witness’s testimony should be
admissible to rehabilitate the witness if it supports the witness’s
denial or explanation of the alleged inconsistent statement.
Pa.R.E. 613, cmt.
At trial, Victim testified on direct examination that Wheeler assaulted
her in the fall of 2012. See N.T. Jury Trial, 6/19/19, at 52, 54. On cross-
examination, Attorney Lang—in accordance with his theory of Victim’s motive
to fabricate, which was based on Father kicking her out of his home, Father’s
hatred for Wheeler, and the mounting pressure from investigators to maintain
her criminal allegations against Wheeler—questioned Victim about why she
had initially told police and Lannetti that the assault occurred in the fall of
2013. Id. at 119. On redirect examination, Victim insisted upon the version
of the allegations that were consistent with her testimony on direct
examination, i.e. the fall 2012 timeline for the assault, and she again denied
fabrication. Id. at 123-24.
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Here, we find that the PCRA court’s analysis pursuant to Rule 613(c)(2)
is supported by the record. See Benner, supra; see also PCRA Court
Opinion, 5/12/21, at 12. Indeed, we conclude that Victim agreed on cross-
examination that she made an inconsistent statement as it relates to her
present allegations when she told investigators the assault took place in 2013.
Id. at 119. Victim explained, during cross-examination, that through the
course of that conversation with investigators, she discovered that Wheeler
had moved out of her home in 2013 and, therefore, she pinpointed the year
of the assault to 2012. Id. We find that the prior consistent statements
Victim testified to on redirect examination were admissible pursuant to Rule
613(c)(2) and its comment, since Victim explained the inconsistent 2013
statement and the consistent statements admitted on redirect examination
supported that explanation and denial of fabrication. See Pa.R.E. 613(c)(2).
Attorney Lang cannot be found ineffective for failing to raise a meritless
objection to admissible evidence.4 See Jones, supra.
Moreover, to the extent prior consistent statements were admitted on
Victim’s direct examination, which preceded Attorney Lang’s raising of the
inconsistent 2013 statement, we find that Attorney Lang had a reasonable
basis for not objecting given his trial strategy, which was evidenced by his
opening argument to the jury that requested the jurors rely upon the
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4In this regard, Wheeler’s reliance on Bond, supra is misplaced, since, in
Bond, this Court found Rule 613(c)(2) was inapplicable because the victim
never explained the inconsistencies in her testimony. See id. at 670.
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inconsistencies in the varying versions of Victim’s allegations to deem Victim
incredible. See Bardo, supra. Indeed, although Wheeler now characterizes
the statements at issue as impermissibly admitted as “prior consistent
statements,” Attorney Lang, at trial, requested the jury draw its attention to
the inconsistencies between the statements now at issue. Additionally, to the
extent that all of the admitted prior consistent statements were made after
Victim’s alleged motive to fabricate,5 Rule 613(c)(2) applies to those
statements regardless. See Commonwealth v. Harris, 852 A.2d 1168,
1176 (Pa. 2004) (pursuant to Rule 613(c)(2), prior consistent statements are
admissible to rebut charge of having made prior inconsistent statement
regardless of whether statement predates motive to fabricate). Given that we
have already found Attorney Lang’s trial theory was reasonable, and since his
pointing out inconsistencies in Victim’s versions of events reasonably
advanced his theory that Victim fabricated the allegations, see Bardo, supra,
Wheeler’s ineffectiveness claim based on the admission of prior consistent
statements must fail.6 See Chmiel, supra; Ali, supra.
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5 As we noted previously, Attorney Lang argued to the jury that Victim had
multiple motives to fabricate the allegations against Wheeler, which arose at
differing times, including Victim’s motive to: move back into Father’s home,
appease Father by appealing to his “hatred” of Wheeler, and avoid facing
perjury charges once the police investigation into her allegations commenced.
6 Even assuming, arguendo, that the challenged statements were admitted in
error, we would decline to find the necessary prejudice. See Chmiel, supra.
In Commonwealth v. Busanet, 54 A.3d 35 (Pa. 2012), our Supreme Court
found that where trial counsel meticulously cross-examined the witness with
(Footnote Continued Next Page)
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Next, Wheeler claims that Attorney Lang was ineffective for affirmatively
offering evidence that Wheeler consulted with counsel prior to his arrest
regarding the matter, and further argues that Attorney Lang should have
objected when the prosecution highlighted his pre-trial silence. Wheeler
suggests that Attorney Lang was ineffective for failing to file a motion in limine
rather than constructing a “straw man” to knock down. See Appellant’s Brief,
at 34. Wheeler relies on our Supreme Court’s decisions in Commonwealth
v. Turner, 454 A.2d 537 (Pa. 1982), and Commonwealth v. Molina, 104
A.3d 430 (Pa. 2014), to establish prejudice. Wheeler is entitled to no relief.
At the PCRA hearing, Attorney Lang explained that he was concerned
with the jury drawing negative inferences from Wheeler being located in North
Carolina at the time of Victim’s disclosure and the start of the criminal
investigation because jurors might infer Wheeler was avoiding the matter and
was not prepared to defend his innocence. To rebut this possible negative
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evidence of a motive to fabricate, and painstakingly pointed out to the jury
that specific motive, and the jury only considered such evidence for purposes
of credibility of the witness rather than substance, the PCRA petitioner failed
to establish prejudice. Id. at 67. Wheeler’s case is on all fours with Busanet
insofar as Attorney Lang vigorously cross-examined Victim regarding her
motives to lie, argued in opening and closing arguments that the jury should
pay particularly close attention to the varying versions of the allegations which
supported a finding that Victim was incredible, and the consistent statements
were only relied upon by counsel in closing argument for purposes of
establishing credibility. Moreover, if Attorney Lang had challenged the
admissibility of Victim’s prior consistent statements, he could not have relied
on them when highlighting inconsistencies to the jury during his closing
argument, which would have been contrary to his theory of the case that
Victim is incredible.
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inference—what Wheeler refers to as the aforementioned “straw man”—and
demonstrate to the jury that Wheeler took the allegations seriously from their
inception, Attorney Lang elicited testimony on direct examination of Wheeler
that Wheeler sought Attorney Lang’s services, via phone call while out-of-
state, prior to his arrest. See N.T. Jury Trial, 6/20/19, at 201-02. While
Wheeler was testifying on direct examination, Wheeler suggested that he was
given no opportunity to assert his innocence. Id. (“I’m states away. I’m
beginning to realize this has been going on for quite some time and I’ve had
no input.”). On cross-examination, the Commonwealth relied on the theory
of “fair response,” see, e.g., Commonwealth v. Copenhefer, 719 A.2d 242,
251-52 (Pa. 1988), and inquired into the exact date Wheeler had retained
counsel. N.T. Jury Trial, 6/20/19, at 205. The Commonwealth argues that it
sought to impeach Wheeler using his version of the “investigative timeline,”
see Appellee’s Brief, at 30, as well as Wheeler’s claim that he wished to assert
his innocence but that police did not fairly investigate his case. Id. The
Commonwealth’s cross-examination of Wheeler proceeded as follows:
Q. Okay. So, sir, normally I wouldn’t comment on this, but since
Mr. Lang brought it up on direct [examination,] with regard to
your retaining an attorney[—you] are in fact on the stand right
now[—y]ou maintain that you didn’t [commit the alleged crimes],
correct?
A. That’s correct.
Q. And that’s the first time anybody is hearing this, correct?
A. That’s incorrect.
Q. Okay. So[,] you told Detective Stark?
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A. Detective Stark has never bothered to talk to me.
Q. Okay. And so[,] you, of course, said[, “]I didn’t do this thing;
I got to tell somebody that I absolutely didn’t do it,[”] right?
A. I don’t believe I’ve ever said that.
Q. Okay. So[,] you didn’t go and assert your innocence, did you?
A. I wanted to. That was my initial reaction.
Id. at 208 (emphasis added).
The Commonwealth contends that it permissibly used the above
questioning to impeach Wheeler’s complaint that he had “no input” in the
investigation into his case but wished to “confront the[] allegations.” Id. at
201-02. We agree.
Here, we conclude that the PCRA court’s determination that the
Commonwealth’s cross-examination of Wheeler was conducted in fair
response is supported by the record. See Benner, supra; see also PCRA
Court Opinion, 5/12/21, at 19. After our independent review, we find that the
court properly allowed the Commonwealth’s questions in fair response to
Wheeler’s grievance regarding the thoroughness of the investigation into his
case and conclude that the Commonwealth did not rely on the evidence for its
substance. See Commonwealth v. Reed, 42 A.3d 314, 323-24 (Pa. Super.
2012) (Fifth Amendment does not preclude prosecutor from fairly responding
to defense argument by referencing testifying defendant’s prior silence).
Further, we are satisfied that Attorney Lang had a reasonable basis for eliciting
testimony from Wheeler that Wheeler had retained Attorney Lang’s services
from North Carolina to rebut the aforementioned subtle inference of guilt.
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Attorney Lang reasonably elicited that testimony for the purpose of relying
upon it in closing argument to demonstrate that Wheeler indeed took the
allegations seriously and asserted his innocence from the beginning. See
Bardo, supra; see also N.T. Jury Trial, 6/21/19, at 13-14 (closing
argument). Because we find Attorney Lang’s trial strategy was reasonably
based, Wheeler’s ineffectiveness claim must fail.7 See Chmiel, supra; Ali,
supra. Insofar as Wheeler argues that Attorney Lang should have pursued a
motion in limine to effectuate this trial strategy, we conclude that we may not
review the reasonableness of Attorney Lang’s theory in hindsight. See
Hawkins, supra.
Next, Wheeler cites to our Supreme Court’s decision in Commonwealth
v. Jones, 240 A.3d 881 (Pa. 2020), to support his claim that Detective
Timothy Perkins testified impermissibly as a lay witness regarding the
behavior of child victims of sexual assault. See N.T. Jury Trial, 6/20/19, at
136-37. Nevertheless, we find that because Wheeler’s claim had no arguable
merit at the time of his trial, Attorney Lang had a reasonable basis for not
objecting. See Jones, 912 A.2d at 278.
In Jones, supra, our Supreme Court held testimony from a law
enforcement officer concerning child victims’ typical behaviors and responses
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7 Though we need not address the issue of prejudice, see Ali, supra, we find
none resulted since the Commonwealth’s questioning was brief and contextual
and because it did not rely on the reference to Wheeler’s pre- or post-arrest
silence as substantive evidence. See Commonwealth v. Rivera, 1788 MDA
2019, at *14-*15 (Pa. Super. filed May 24, 2021); see also Reed, supra.- 17 -
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to sexual abuse falls within the realm of expert testimony and testimony on
such topic is admissible subject to proper expert qualification. 240 A.3d at
891. Wheeler claims that his case is on all fours with Jones.
Although the cases are factually similar, appellate courts of this
Commonwealth review ineffective assistance of counsel claims under the PCRA
according to the standards and legal precedents in effect at the time of
counsel’s representation. See Commonwealth v. Smith, 995 A.2d 1143,
1172 (Pa. 2010) (assessing reasonableness of trial attorney’s stewardship
under prevailing professional norms at time of representation). Additionally,
the Supreme Court has clarified that counsel will not be faulted for failing to
predict a change in the law. See Commonwealth v. Bennett, 57 A.3d 1185,
1201 (Pa. 2012).
Here, Attorney Lang’s opening argument referred to Victim’s case as
atypical and called on the jury to infer that Victim’s allegations are incredible
based on that atypicality. N.T. Jury Trial, 6/19/19, at 14-15 (opening
argument). Prior to seeking its admission, the Commonwealth informed the
court and Wheeler that it intended to introduce Detective Perkins’ lay witness
testimony regarding “typical sex assault cases[,]” which would be based on
the detective’s experience and training, and which was intended to rebut
Attorney Lang’s opening statement and theory of atypicality. See N.T. Jury
Trial, 6/19/19, at 129. The court agreed to permit Detective Perkins’ brief lay
testimony on that topic. Id. (“[I]n light of [Attorney] Lang’s opening
argument[, the court wi]ll allow some leeway. Don’t go too far.”). As
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previously noted, the Commonwealth later introduced Detective Perkins’ now-
challenged testimony. Id., 6/20/19, at 136-37.
After our independent review, we find that the PCRA court’s
determination that Jones, 240 A.3d at 891, is inapplicable to Wheeler’s case
is supported by the record. See Benner, supra; see also PCRA Court
Opinion, 5/12/21, at 17. We conclude that, here, Attorney Lang cannot be
faulted for failing to object to Detective Perkins’ lay testimony since such
objection would have been premised on Jones, 240 A.3d at 891, and thus,
would have required Attorney Lang to predict a future change in the law. See
Bennett, supra. Moreover, in light of Attorney Lang’s opening statement,
the Commonwealth’s subsequent notice to the court and Wheeler of its intent
to admit Detective Perkins’ lay testimony, and the court’s indication that it
would grant minimal leeway for such admission, we are satisfied that Attorney
Lang had no reasonable basis for objecting at that time since the objection
would have been meritless and there was no alternative that offered a
potential for success substantially greater than the course Attorney Lang
actually pursued. See Jones, 912 A.2d at 278; Spotz, supra.
Next, Wheeler contends that Attorney Lang was ineffective for failing to
object to the prosecution’s: (1) closing argument, which included the
prosecutor mentioning “notorious offenders” including Nassar, Cosby, and
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Sandusky;8 (2) “attacks” on Attorney Lang, which distracted the jury;9 and
(3) call for jurors to convict Wheeler to permit Victim to begin to “heal.” 10
Our “stringent” standard of review for a claim of prosecutorial
misconduct stemming from improper argument to the jury is well-settled:
“Comments by a prosecutor constitute reversible error only where their
unavoidable effect is to prejudice the jury, forming in their minds a fixed bias
and hostility toward the defendant such that they could not weigh the evidence
objectively and render a fair verdict.” Chmiel, supra at 1147.
Further, this Court has previously delineated the appellant’s heavy
burden for proving an ineffective assistance of trial counsel claim based on
counsel’s failure to object to the prosecution’s remarks to the jury:
____________________________________________
8 The prosecutor stated to the jury: “There is no typical sexual assault
investigation. In today’s day and age, in the day and age of Larry Nassar, of
Bill Cosby, of Jerry Sandusky, I can’t imagine why a child would delay the
report. I can’t explain that to you. But it happens. And that’s what happened
here.” N.T. Jury Trial, 6/21/19, at 28 (closing argument).
9 The prosecutor argued to the jury:
[Attorney Lang i]s asking you to focus on literally anything that is
not [from the Victim], that is not the words that came out of her
mouth on that stand. He’s asking you to do that because he wants
to distract you from [Victim]. He wants to distract you from how
[Victim] courageously told a room full of strangers about how this
grown man violated her, how he penetrated her, how he exposed
himself.
N.T. Jury Trial, 6/21/19, at 31 (closing argument).
10 The prosecution asked the jury to “close the door on that trauma so [Victim]
can start to heal[.]” N.T. Jury Trial, 6/21/19, at 43 (closing argument).
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the remarks must first be genuinely prejudicial to the defendant;
this prejudice must be serious enough that it could not be cured
by the court’s instructions; counsel must have had no reason for
failing to object to the remarks; and finally, it must appear that
objecting would have done some good—that is, counsel’s failure
to object denied the defendant a fair trial.
Commonwealth v. Thompson, 660 A.2d 68, 75 (Pa. Super. 1995) (citing
Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1992)).
In Chmiel, supra, our Supreme Court explained how appellate courts
review allegations of prosecutorial misconduct in argument to the jury:
In accord with the long-standing principle that a “prosecutor must
be free to present his or her arguments with logical force and
vigor,” this Court has permitted prosecutorial advocacy “as long
as there is a reasonable basis in the record for the prosecutor’s
comments.” Commonwealth v. Robinson, [] 864 A.2d 460,
516-17 (Pa. 2004). Prosecutorial comments based on the
evidence or reasonable inferences therefrom are not
objectionable, nor are comments that merely constitute oratorical
flair. [Commonwealth v.] Tedford, 960 A.2d [1,] 33 [(Pa.
2008)]. Furthermore, the prosecution must be permitted to
respond to defense counsel’s arguments. Id. Any challenged
prosecutorial comment must not be viewed in isolation, but rather
must be considered in the context in which it was offered.
Robinson, supra at 517.
It is improper for a prosecutor to offer his or her personal opinion
as to the guilt of the accused or the credibility of any testimony.
Commonwealth v. DeJesus, [] 860 A.2d 102, 112 ([Pa.] 2004).
However, it is well within the bounds of proper advocacy for the
prosecutor to summarize the facts of the case and then ask the
jury to find the accused guilty based on those facts. See id.Chmiel, supra at 1146-47 (brackets omitted). Additionally, the prosecutor’s
insinuation during closing argument that defense counsel is attempting to
divert a jury’s attention from the totality of the evidence is not improper where
the remark “constitutes an appeal to the jury to use its collective intelligence
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and logic in assessing all of the evidence.” Commonwealth v. Hennigan,
753 A.2d 245, 261-62 (Pa. Super. 2000) (quoting Commonwealth v. Smith,
467 A.2d 1307, 1321 n.20 (Pa. Super. 1983)).
Here, we conclude that Wheeler’s complaints of ineffectiveness are
overstated, and that he is entitled to no relief on any of his prosecutorial
misconduct claims since the PCRA court’s determination that no relief is due
is supported by the record. See Benner, supra; see also PCRA Court
Opinion, 5/12/21, at 23-24. First, as it relates to all three challenged remarks,
we are satisfied that the court instructed the jury twice over the course of the
trial that the attorneys’ arguments are not evidence and ought not be
considered as such. The jury is presumed to follow the court’s instructions.
See Chmiel, supra at 1147.
As to the prosecution’s references to Nassar, Cosby, and Sandusky, we
have already mentioned that Attorney Lang’s theory of the case included that
Victim was incredible based on the fact that her allegations were atypical of
other child sex assault cases. Given Attorney Lang’s opening argument to the
jury, we conclude that the prosecution was permitted to respond by asserting
that, in essence, there is no such “typical” child sex assault case. We find that
the Commonwealth’s closing remarks were reasonably based in the record
where they challenged Attorney Lang’s comment on the typicality of Victim’s
case. See Robinson, supra at 516-17. Additionally, the prosecutor merely
said the names of the “notorious” offenders in passing, and we conclude it was
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fair response to Attorney Lang’s charge of “atypicality,” see Tedford, supra,
making use of permissible oratorical flair. Id.
As to the prosecution’s “attacks” on Attorney Lang, see supra at n.9,
we find that this case is on all fours with Hennigan, where the prosecutor’s
remarks constituted an appeal to the jury to use its collective intelligence and
logic in assessing all of the evidence for and against Wheeler. See Hennigan,
supra.Finally, as to the prosecution’s closing argument asking the jury to
“close the door on that trauma so [Victim] can start to heal,” see N.T. Jury
Trial, 6/21/19, at 43 (closing argument), we find that the Commonwealth was
merely summarizing the facts of the case and asking the jury to find Wheeler
guilty based on those facts, again making use of permissible oratorical flair.
See DeJesus, supra; see also Tedford, supra. See also Commonwealth
v. Carson, 913 A.2d 220, 238 (Pa. 2006) (“If [prosecutor’s] arguments
[based on the evidence] were improper, the Commonwealth would be hard-
pressed to make any argument in response to the defense.”). Our Supreme
Court has previously declined to find prosecutorial misconduct under similar
circumstances. See Commonwealth v. Marshall, 633 A.2d 1100, 1107 (Pa.
1993) (prosecutor’s statement to jury in closing to “do your duty and close
the eyes of the dead” within bounds of permissible oratorical flair and not
deliberate attempt to destroy factfinder’s objectivity). Since any objections
to Wheeler’s now-challenged closing remarks would have been meritless, we
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cannot find Attorney Lang was ineffective for failing to raise those objections.
Jones, 912 A.2d at 278.
Last, Wheeler asserts that the cumulative prejudice that he suffered
from all of the above-alleged errors entitles him to a new trial. See Appellant’s
Brief, at 44-47. We disagree.
Our Supreme Court has previously explained the method by which
appellate courts review a claim of cumulative error:
[N]o number of failed ineffectiveness claims may collectively
warrant relief if they fail to do so individually. Commonwealth
v. Johnson, [] 966 A.2d 523, 532 ([Pa.] 2009). Thus, to the
extent claims are rejected for lack of arguable merit, there is no
basis for an accumulation claim. Commonwealth v. Sattazahn,
[] 952 A.2d 640, 671 ([Pa.] 2008). When the failure of individual
claims is grounded in lack of prejudice, however, then the
cumulative prejudice from those individual claims may properly be
assessed. Johnson, [supra] (citing Commonwealth v. Perry,
[] 644 A.2d 705, 709 ([Pa.] 1994)[).]
Commonwealth v. Hanible, 30 A.3d 426, 483 (Pa. 2011).
Here, we conclude that the PCRA court’s determination that Wheeler is
not entitled to a cumulative error claim is supported by the record. See
Benner, supra; see also PCRA Court Opinion, 5/12/21, at 24-25. None of
the analyses herein denying Wheeler relief is grounded in a lack of prejudice.
See Johnson, supra. Indeed, we have declined to grant Wheeler relief on
each of his errors raised on appeal because Attorney Lang’s action was either
reasonably based or there was a lack of arguable merit to Wheeler’s claim.
Therefore, Wheeler has no basis for an accumulation claim. See Sattazahn,
supra.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2021
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