Com. v. Vega, J.

J-S12041-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
JOHN ANTHONY VEGA
Appellant : No. 1692 EDA 2020
Appeal from the PCRA Order Entered September 2, 2020
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000395-2009
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: May 20, 2021
John Anthony Vega (“Vega”) appeals from the Order dismissing his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously set forth the factual history underlying this appeal
as follows:
Evidence at trial established that on two separate dates an
intruder broke into [the victim’s] home during the early morning
hours and sexually assaulted her. At the time of these assaults,
[the victim] was a seventy-seven[-]year-old widow. The assaults
occurred on October 21, 2007 (“2007 assault”)[,] and May 31,
2008 ("2008 assault”).
On October 21, 2007, [the victim] was in the living room of
her home in Palmerton, Carbon County, Pennsylvanial[, |] watching
television. At around one o’clock in the morning, she left the living
room to use the bathroom. During this time, a masked intruder
entered the home and followed her into the bathroom. [The
victim] testified that the intruder was wearing all black and a mask
from the movie Scream. Further, [the victim] testified that the
intruder was around five[-|foot[,] seven [inches tall,] and spoke
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with a slight Spanish or Puerto Rican accent. Testimony at trial
showed that this description matched [Vega].
Inside the bathroom, the intruder told [the victim] “he came
to rape her.” The intruder then approached [the victim] and a
struggle began causing both the intruder and [the victim] to fall
to the floor. Once on the floor, [the victim] continued to resist.
This notwithstanding, the intruder fondled [the victim’s] vagina.
As the struggle continued, [the victim] told the intruder that if he
raped her, she could die because she was suffering from
Parkinson’s disease, high blood pressure, and high cholesterol.
After hearing this, the intruder ended the attack and left. Before
he left, he said, “I'll be back.”
Once the intruder left, [the victim] noticed that her phone
wires were disconnected and that her underwear had been taken
from a laundry basket and hung on various objects throughout the
home. The Pennsylvania State Police were called to investigate.
Unfortunately, no evidence was found that identified the intruder.
The police did find a makeshift mask made from a pair of [the
victim’s] shorts at the scene, but this was not the mask described
by [the victim], and testing did not yield any results.
Seven months later[,] an intruder again entered [the
victim’s] home. This occurred during the early morning hours of
May 31, 2008, while [the victim] was watching television. As she
was going to the kitchen, she was attacked in the hallway. At
trial, [the victim] identified her assailant as the same person from
the 2007 assault. This time, however, the intruder was wearing
all black and a ski mask. [The victim] testified that the intruder
said, “I’m back. I’m here to finish what I came for before, the first
time.” The intruder then grabbed [the victim] and forced her to
the ground. While on the ground, the two wrestled. The intruder
fondled [the victim’s] vagina, and he removed her underwear.
Fortunately, [the victim] was not living alone when this
second assault occurred. In the seven months since the first
assault, [the victim] rented a room in her home to [a roommate].
[The victim’s] screams for help during the attack awoke [her
roommate]. [The roommate] ran out of her room into the
hallway. As she did so, the intruder ended the attack and ran out
of [the victim’s] home.
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The Pennsylvania State Police were called a second time to
investigate. This time, police discovered two pieces of evidence
that identified the intruder as [Vega]. First, police lifted a palm
print from a windowsill on the outside of [the victim’s] home.
Police found a step stool beneath the window and determined the
intruder entered the home at this location. Two experts for the
Commonwealth testified that the palm print found matched
[Vega’s]. While the experts could not determine the exact time
[Vega] left this print, one of the experts, [Pennsylvania State]
Trooper Phillip Barletto, testified that outdoor elements easily
destroy finger and palm prints, implying the print was fresh.
Further, no evidence was presented to provide an innocent
explanation why [Vega’s] palm print would be on the outside of
[the victim’s] windowsill when neither she nor [the roommate]
knew [Vega] or gave him permission to be at the home.
Second, on the interior windowsill of the same window from
which the police lifted the palm print, police found an unopened
box of condoms. The condoms were manufactured by Associated
Wholesalers, Incorporated. Police contacted Associated, who
advised they distributed condoms of the type found in a
Convenient Food Mart in Palmerton. Sales receipts from this store
were obtained[,] which showed that a box of condoms was
purchased at 11:14 [p].[m]. on the night of the 2008 assault.
Next, police obtained surveillance video from the Convenient Food
Mart for the time of this purchase. The video depicted a customer
who strongly resembled [Vega] and was wearing a shirt with the
words “encendido” printed across the front[,] buying condoms of
the same type as those found in the victim’s home. Later, police
found a shirt matching that in the video in a search of [Vega’s]
home.
Based on this evidence, on March 27, 2009, the
Commonwealth filed a Criminal Complaint against [Vega] for both
the 2007 and 2008 assaults. In this [C]omplaint, [Vega] was
charged for each date with one count of attempted rape by forcible
compulsion, burglary, criminal trespass, and indecent assault. He
was also charged with one count of simple assault related to the
2008 assault. A jury trial began on January 7, 2013[,] and ended
on January 9, 2013. At its conclusion, the jury found [Vega] guilty
of all charges.
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.. [Vega] was ... sentenced to an aggregate [term] of
thirteen to thirty-one years’ incarceration in a state correctional
facility. [Vega] was then thirty years old. The sentence was made
consecutive to sentences [Vega] was then serving in Northampton
and Lehigh counties for similar offenses. At the time of
sentencing, [Vega] was also serving a forty-six-month sentence
in a federal penitentiary.
On May 10, 2013, [Vega] filed a timely post-sentence
[M]otion[,] which was denied by [O|rder dated September 3,
2013.
Commonwealth v. Vega, 104 A.3d 49 (Pa. Super. 2014) (unpublished
memorandum at 1-3) (brackets omitted). This Court affirmed Vega’s
judgment of sentence, and our Supreme Court denied Vega’s Petition for
allowance of appeal. See id., appeal denied, 102 A.3d 985 (Pa. 2014).
On October 22, 2015, Vega filed the instant, pro se, PCRA Petition, his
first. The PCRA court appointed Vega counsel, who filed a Petition to Withdraw
and a “no-merit” letter pursuant to Turner/Finley.! Vega subsequently filed
a Motion to proceed pro se. The PCRA court granted counsel’s Petition to
Withdraw and appointed new counsel for Vega.2 On September 6, 2016,
Vega’s new counsel filed an Amended PCRA Petition. Following a hearing, the
PCRA court dismissed the Amended PCRA Petition. Vega filed a timely Notice
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 The PCRA court did not explicitly deny Vega’s Motion to proceed pro se.
However, in its Order appointing Vega’s new counsel, the PCRA court noted
that Vega’s request to proceed as his own counsel “is a matter which should
be discussed” with his new counsel. Order, 7/11/2016.
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of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of
matters complained of on appeal.
Vega now presents the following question for our review:
Whether the [PCRA] [c]lourt erred in its finding that the
failure to call [] Vega’s girlfriend, Melissa Ballas [(“Ballas”)], as an
alibi witness did not deny effective assistance of counsel where
the failure to call such an important exculpatory witness was
clearly prejudicial and it was simply not reasonable strategy not
to present in an otherwise weak case for the Commonwealth?
Whether this alibi would have created a reasonable doubt as to []
Vega’s presence at the scene of the crime?
Brief for Appellant at 5.
“The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is free
of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.
2017). “The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Id. (citation omitted).
Vega argues that his trial counsel was ineffective in failing to present
Ballas as an alibi witness at his trial. Brief for Appellant at 10-13. Vega points
to Ballas’s testimony at the PCRA hearing in support of his claim. Id. at 7,
11-13. Specifically, regarding the October 2007 assault, Ballas testified that
at the time of the October 2007 assault, Vega was with her at her apartment
in Emmaus, Pennsylvania. Id. Ballas stated that Emmaus is a thirty-five to
forty-five minute drive from the victim’s home. Id, at 7, 11. Regarding the
May 2008 assault, Ballas testified that she spoke with Vega on the phone at
1:10 a.m. on the morning of the May 2008 assault. Id. Vega also points out
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that, according to his phone records, his cell phone signal connected with a
cell tower in Whitehall, which is approximately a fifteen to twenty-five minute
drive from the victim’s home. TId. at 7-8, 11. According to Vega, this
testimony proves that he could not have committed the assaults; trial
counsel’s decision to not present this testimony lacked a reasonable basis;
and Vega was prejudiced as a result. Id. at 11-13.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove, by a preponderance of the evidence, that
counsel’s ineffectiveness “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically,
[t]lo 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
Commonweatth v. Pierce, ...527 A.2d 973, 975-76 (Pa. 1987)).
Counsel is presumed to have rendered effective assistance.
Additionally, counsel cannot be deemed ineffective for failing to
raise a meritless claim. 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.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote and
some citations omitted).
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Relating to the reasonable basis prong, generally, 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 offered a potential for success substantially
greater than the course actually pursued.
Commonwealth v. Durrett King, 195 A.3d 255, 259 (Pa. Super. 2018)
(quotation marks, brackets and citations omitted).
In its Opinion, the PCRA court cogently and thoroughly addressed Vega’s
claim, and concluded that it lacks merit. See PCRA Court Opinion, 9/1/20, at
4-8, 10-21. Specifically, the PCRA court determined that Vega’s underlying
claim lacks arguable merit and trial counsel had a reasonable basis for not
calling Ballas as a witness. Id. The PCRA court further concluded that even
if Vega’s claim had merit, he did not suffer prejudice as a result of Ballas not
being called as a witness. Id. We agree with the sound reasoning and
determinations of the PCRA court, as set forth in its Opinion, and we affirm
thereon regarding Vega’s claim. See id.Order affirmed.
J-S12041-21
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 5/20/21
Circulated 04/29/2021 11:27 AM
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA :
vs. : NO. 395CR 2009
JOHN ANTHONY VEGA,
Defendant
Cynthia Dyrda-Hatton, Esquire Counsel for Commonwealth
District Attorney
John J. McMahon, Esquire Counsel for Defendant
MEMORANDUM OPINION
Nanovic, P.J. — September 1, 2020
Defendant was convicted of sexually assaulting a seventy-seven-year-old widow
in her home twice within a period of seven months, each time after breaking into the
home. On direct appeal, the Pennsylvania Superior Court affirmed Defendant's
judgement of sentence on May 15, 2014; the Pennsylvania Supreme Court denied
Defendant's allowance of appeal on October 23, 2014. Before us is Defendant's claim
that his trial counsel was ineffective for failing to call Defendant's girlfriend as a potential
alibi witness to the first assault and to use records of cell phone calls Defendant made
at the time of the second assault to pinpoint Defendant's location and thereby
demonstrate the resulting unlikelihood or improbability of Defendant committing the
second assault. For the reasons which follow, we deny Defendant's Petition for Relief
under the Post-Conviction Relief Act (‘PCRA"), 42 Pa.C.S.A. §§ 9541-9546.
PROCEDURAL AND FACTUAL BACKGROUND
On October 21, 2007, at approximately 1:00 A.M., June Fields was in her home
at 3885 Fireline Road in Palmerton preparing to retire for the night. Fields was
seventy-seven years old and lived alone. As she was in the bathroom, Defendant
APPENDIX “A’
4
suddenly appeared, threatened to rape her, and began to digitally penetrate her.
Fields begged for her life and told Defendant she was ill, and that if he did what he
threatened to do, it would kill her. Defendant stopped and fled Fields’ home
threatening to return. (N.T., 1/8/13, p.104).
The October 21, 2007, assault was promptly reported to the state police,
however, there were no leads and the police were unable to determine who assaulted
Fields. At the time of the assault, Defendant was dressed entirely in black and wore a
mask of the type used in the movie Scream. Fields did not recognize Defendant or
know who he was. Other than being able to describe his clothing and the mask worn,
the only other information Fields was able to provide was that her assailant was
approximately 5’7” in height and spoke with a slight Spanish or Puerto Rican accent.
Defendant returned to Fields’ home on May 31, 2008, sometime between
midnight and 1:00 A.M. (N.T., 1/8/13, pp.106, 137, 154, 176, 205-206, 209: N.T., 1/9/13,
p.308; N.T., 8/29/18, pp.81, 84, 126). This time, Defendant attacked Fields in the
hallway of her home saying, "I'm back. I'm here to finish what | came for before, the
first time.” (N.T., 1/8/13, p.106). Defendant grabbed Fields and forced her to the floor
where he pulled down her underwear and touched her vagina. ‘As Fields screamed for
help and fought back, a third person now boarding in Fields’ home was awoken and
entered the hallway where Fields was being attacked. At this point, Defendant ended
his attack and ran out of the home.
During the May 31, 2008, attack, Defendant again wore only black, but this time
was wearing a ski mask. Fields identified the person who attacked her on May 31,
2008, as the same person who had broken into her home on October 21, 2007. (N.T.,
APPENDIX "A"
2
1/8/13, p.107). This time, however, the state police were able to determine the
identity of the assailant.
Defendant's palm print was found on the outside of a window used by the
attacker to gain access to Fields’ home and where a Stepstool had been placed.
Further, an unopened box of condoms left by the intruder was found by the inside of this
same window. Based upon the brand and type of condom, the police were able to
trace the purchase of condoms of the same brand and type to a Convenient Food Mart
in Palmerton at 11:14 P.M. on the night of the 2008 assault. A surveillance video of
this convenience store recorded the purchase. The customer strongly resembled
Defendant and was wearing a shirt with the word ENCEND/DO' printed across the
front. A search of Defendant’s home found a shirt of the same type. (N.T., 1/9/13,
pp.251-52).
On January 9, 2013, after a three-day trial beginning on January 7 and ending on
January 9, 2013, Defendant was convicted of two counts of Attempted Rape by Forcible
Compulsion, two counts of Burglary,? two counts of Criminal Trespass,* two counts of
Indecent Assault by Forcible Compulsion,® and one count of Simple Assault.6 As
noted earlier, the merits of Defendant’s direct appeal to the Superior Court were denied,
as was his request for allowance of appeal.
On October 22, 2015, Defendant filed a pro se Petition for Collateral Relief, his
first. Therein, Defendant claimed, infer alia, that his trial counsel was ineffective for
failing to adequately investigate Defendant’s claim of alibi and to present alibi
' In Spanish, ENCENDIDO means fiery or passionate. (N.T., 1/9/13, ‘p.264).
218 Pa.C.S.A. §§ 901, 3121 (a)(1).
3 48 Pa.C.S.A. § 3502.
4 18 Pa.C.S.A. § 3503(a}(1)(i).
5 18 Pa.C.S.A. § 3126(a)(2).
8 18 Pa.C.S.A. § 2701(a)(1).
APPENDIX “A”
3
witnesses, including Melissa Ballas, who were available to the defense and willing to
testify at trial. Defendant specifically claimed that Ballas was with him on October 21,
2007, at 1:00 A.M. and that phone records showed she was on the phone with him at
1:10 A.M. on May 31, 2008. Attached to Defendant’s PCRA Petition was the following
signed and notarized statement of Ballas dated October 15, 2015:
| informed the Pennsylvania State Police and all of John Vega’s attorneys,
including trial counsel Kent Watkins, that on both mornings of the incidents
in question that John was either with me or on the phone with me. |! told
them that on October 21, 2007, John and | shared an apartment and | was
always with him, it would be extremely unlikely that he wouldn't have been
there that night. | also told them on the night/early morning of May 31,
2008, | definitely remember speaking with John late/night early morning.
His phone records later show that | did, in fact, speak with John at 1:11
a.m.
(N.T., 8/29/18, p.53; Commonwealth Exhibit No.1.). Ballas admitted preparing this
document on or about October 15, 2015, at Defendant’s request for use with his
Petition. (N.T., 8/29/18, pp.51-52, 74).
Other than Ballas, Defendant has identified no other alibi witness who he claims
were available and willing to testify at trial and whom trial counsel was made aware of.
PCRA counsel was originally appointed for Defendant and filed a no-merit letter.
Defendant’s present counsel has been privately retained.
A hearing on Defendant's Petition was held on August 29, 2018. At this hearing,
Ballas was the sole witness called by Defendant. Ballas testified that she first met
Defendant at a party at Defendant's cousin's home on October 20, 2004, that they
began a romantic relationship shortly thereafter, and that they were living together in an
apartment in Emmaus, Pennsyivania at the time of both the October 21, 2007, and May
31, 2008, incidents. (N.T., 8/29/18, pp.12-14, 26). Ballas also testified that October
20, 2007, was a Saturday, that she and Defendant spent the entire weekend together -
APPENDIX “A”
4
this being the third anniversary of their meeting - and that other than Defendant leaving
for approximately fifteen minutes late Saturday to purchase some cigarettes, they were
together the entire time. (N.T., 8/29/18, pp.11, 15-17). This apartment, Ballas
testified, was a thirty-five to forty-minute drive from Fields’ home. (N.T., 8/29/18, p.17).
As to May 31, 2008, Ballas testified that she tried telephoning Defendant
unsuccessfully two times on May 31, 2008 — at 12:41 A.M. and 12:49 A.M. — before he
returned her call at 1:10 A.M. (N.T., 8/29/18, pp.32-33). Defendant’s cell phone
records, which were provided to the defense in response to discovery and which Ballas
referred to in her testimony, show a forty-nine-second phone call from Defendant to
Ballas at 1:10 A.M. with the cell phone signal connecting with a cell tower at 3880
Lehigh Street, Whitehall, Pennsylvania, a distance of approximately seventeen miles
from Fields’ home, with a driving time of approximately fifteen to twenty-five minutes.
(N.T., 8/29/18, pp.26-27, 30-33, 42-46, 125-26, 130; Defendant Exhibit No.1).
Accepting the premise that the cell tower used to transfer Defendant's cell phone signal
was the one closest to his location at the time of the call, Defendant argued it was
physically impossible for him to have been in Fields’ home at the time Fields stated (Le.,
approximately 1:00 A.M.) and to have also driven a distance of seventeen miles to
make this call.
Ballas testified she told Watkins several times what she knew about Defendant's
whereabouts at the time of each offense with which he was charged, about her review
of Defendant's cell phone records with Watkins, and that the cell phone records were
ones Watkins received in discovery from the Commonwealth. (N.T., 8/29/18, pp.20-23,
26, 29-30, 43, 69-70; Defendant Exhibit No.1 (cell phone records)).
APPENDIX “A”
5
Attorney Watkins, Defendant's trial counsel, testified at the PCRA hearing as a
witness on behalf of the Commonwealth. He was not present in the courtroom when
Ballas testified. Watkins admitted speaking with Ballas on several occasions — both in
person and on the phone - and discussing the phone call from Defendant to Ballas on
May 31, 2008, and using the cell phone tower through which the call was transmitted as
a means of determining Defendant's location, but had no fSééllection and appeared
doubtful of ever being told that Ballas was with Defendant in Emmaus on October 21,
2007. (N.T., 8/29/18, pp.79-82, 100-101, 104, 107-108, 111-115, 119-120, 122).
Watkins acknowledged that given the passage of time, he did not have an independent
recollection of every detail of what Ballas told him (N.T., 8/29/18, pp.91, 105), and
agreed that Ballas was ready, willing and able to testify on Defendant's behalf.”
When questioned about why he did not call Ballas at trial as an alibi witness for
the October 21, 2007, assault and to cast doubt on Defendant’s whereabouts for the
May 31, 2008, assault, Watkins testified it didn't fit his theory of the defense: to highlight
the generic description of the intruder given by Fields and how non-specific it was; to
force the Commonwealth to prove Defendant was in Fields’ home and not somewhere
else at the time of the assault; and to challenge the Commonwealth’s theory that
Defendant entered and exited Fields’ home through a window too small for a person of
his size, without leaving any fingerprints or clothing fibers. (N.T., 1/7/13, pp.22, 95-96:
N.T., 1/9/13, pp.306, 308-310; N.T., 8/29/18, pp.82-83, 90-92). Watkins had a plan to
discredit the palm print evidence and cast doubt on the significance of the pictures
taken by the security camera at the convenience store. (N.T., 1/7/13, pp.51-52, 90-91:
? The PCRA hearing was held more than five years after the date of trial. At the hearing, it was clear
that Watkins had not reviewed his file in preparation for the hearing. (N.T., 8/29/18, p.105). Nor did
Watkins bring his case file or any notes he may have taken to the hearing. (N.T., 8/29/18, p.101).
APPENDIX “A”
6
N.T., 1/8/13, p.232; N.T., 1/9/13, pp.307-308; N.T., 8/29/18, pp.22, 25, 44, 46-47,
93-94). He did not want to present any evidence that Defendant was out of his home
on May 31, 2008, at a time when he would have been capable of committing the
assault, and Ballas had him out at 1:10 A.M. and earlier given the two phone cails she
made preceding this return call. (N.T., 8/29/18, pp.82-83, 85, 90-92, 112-416, 119).
Watkins also testified he discussed with Defendant his concerns about calling Ballas as
a witness and use of Defendant's cell phone records, and that Defendant was in
agreement with his decision not to call Ballas. (N.T., 8/29/18, pp.94-95).
Notwithstanding Watkins’ general lack of recollection, there were a number of
additional items Watkins testified to of significance. First, approximately five months
before Defendant's trial in Carbon County, Defendant was tried and convicted by a jury
in Lehigh County of charges of the same nature, under similar circumstances: breaking
into an elderly woman's home late at night and sexually assaulting her. (N.T., 1/9/13,
p.282; N.T., 8/29/18, pp.55, 81). In preparation for trial, Watkins read the full transcript
of the Lehigh County trial at which the evidence tying Defendant to the attacks against
Fields was admitted. (N.T., 8/29/18, pp.79-80).8 From that, Watkins knew the May 31,
2008, telephone records offered little to the defense, that multiple entries in those
records indicated telephone calls made to and by Defendant for drug trafficking, that
Ballas positively identified Defendant as the person purchasing the condoms from the
Convenient Food Mart in Palmerton an hour or two before the May 31, 2008, assault,
and that Ballas, who testified as an alibi witness for Defendant in the Lehigh County
proceedings, was not believed by the jury. (N.T., 8/29/18, pp.34-35, 41-42, 44, 46, 56,
8 ACD of the entire trial proceedings held in Lehigh County was marked and admitted as an exhibit at the
PCRA hearing. (N.T., 8/29/18, pp.136-137; Commonwealth Exhibit No.2).
APPENDIX “A”
7
60-61, 68-70, 80, 90-94, 125, 127, 134-35). Watkins testified as well that
notwithstanding the location of the cell tower involved in transmitting Defendant's
telephone call to Ballas on May 31, 2008, this did not establish the location from which
the call was made since, among other things, if the load on the cell phone tower closest
to where the call was made was backed up, the signal would automatically transfer to
another cell tower to relay the message. (N.T., 8/29/18, pp.82, 85, 113).
| DISCUSSION
A criminal defendant's right to counsel under the Sixth Amendment to the United
States Constitution, with which Article |, Section 9 of the Pennsylvania Constitution is
coextensive, requires not merely the right to have counsel present at trial, but the right
to have the effective assistance of counsel in order to preserve the defendant's right to
due process and ensure a fair trial. Commonwealth v. Diaz, 226 A.3d 995, 1007-1008
(Pa. 2020). To obtain post-trial collateral relief, a PCRA petitioner must plead and
prove that trial counsel’s performance was deficient and that the deficiency prejudiced
the petitioner. Strickland _v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); see also Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa.
1987) (applying a three-factor analysis to the “performance and prejudice” standard
articulated in Strickland).
To plead and prove ineffective assistance of counsel a petitioner must
establish: (1) that the underlying issue has arguable merit; (2)
counsel's actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel's act or failure to act. Where the
petitioner fails to plead or meet any elements of the above-cited test,
his claim must fail.
A claim has arguable merit where the factual averments, if accurate,
could establish cause for relief. Whether the facts rise to the level of
arguable merit is a legal determination.
APPENDIX “A”
8
The test for deciding whether counsel had a reasonable basis for his
action or inaction is whether no competent counsel would have chosen
that action or inaction, or, the alternative, not chosen, offered a
significantly greater potential chance of success. Counsel's decisions
will be considered reasonable if they effectuated his client's interests.
We do not employ a hindsight analysis in comparing trial counsel's
actions with other efforts he may have taken.
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.
Commonwealth v. Stewart, 84 A.3d 701, 706-707 (Pa.Super. 2013) (en banc) (citations
and quotation marks omitted), appeal denied, 93 A.3d 463 (Pa. 2014); see also
Commonwealth v. Kimball, 724 A.2d 326, 330-32 (Pa. 1999).
Additionally, when reviewing a claim that counsel was ineffective for failing to call
a witness,
[a] failure to call a witness is not per se ineffective assistance of
counsel as such decision generally involves a matter of trial strategy.
To establish a claim that counsel was ineffective for failing to call a
witness, a defendant must establish that the witness existed and was
available, that counsel was informed of the witness’s existence, that
the witness was ready and willing to testify and that the absence of the
witness prejudiced the defendant to a point where the defendant was
denied a fair trial.
Commonweaith v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007); Commonwealth v.
Selenski, 228 A.3d 8 (Pa.Super. 2020). Finally, in reviewing a claim that counsel was
ineffective, counsel is presumed to be effective with the burden resting upon the PCRA
petitioner to prove by a preponderance of the evidence that counsel's performance was
deficient and that such deficiency prejudiced him. Commonwealth v. Smith, 181 A.3d
1168, 1174-75 (Pa.Super. 2018), appeal denied, 193 A.3d 344 (Pa. 2018); see also
Commonwealth v. Colavita, 993 A.2d 874, 897 (Pa. 2010) (holding the Commonwealth
APPENDIX “A"
9
bears no burden of proof with respect to a claim of ineffectiveness of counsel under the
PCRA).
When considering the Strickland/Pierce criteria for evaluating whether counsel
was ineffective, not every factor needs to be considered since the failure to meet even
one is fatal to a finding that counsel was ineffective. Commonwealth v. Mason, 130 A.3d
601, 618 (Pa. 2015). This notwithstanding, we believe it appropriate in this case to
examine each prong of the Strickland/Pierce analysis.
Arguable Merit of Defendant’s Claim
Given the fact that there were only two witnesses to the October 21, 2007,
assault - Fields and the assailant — and the general description of the assailant given by
Fields, Defendant’s claim of an alibi for this date is of arguable merit. However,
counsel cannot be faulted for failing to present evidence of which he was unaware.
Basic to Defendant's claim that Watkins was ineffective for failing to call Ballas as
an alibi witness with respect fo the October 21, 2007, assault is that Watkins was told
Defendant was with Balias in Emmaus on October 21, 2007, at the time of the assault
and, therefore, could not have assaulted Fields. “An alibi is a defense that places the
defendant at the relevant time in a different place than the scene involved and so
removed therefrom as to render it impossible for him to be the guilty party.”
Commonwealth v. Johnson, 966 A.2d 523, 537 n.5 (Pa. 2009) (citation and quotation
marks omitted). We do not find Ballas credible on this point.
We note first that Watkins was apprised of Ballas’ existence and her relationship
with Defendant, that he met with her on at least one occasion and spoke with her by
telephone on several other occasions regarding the substance of her testimony - if not
every detail - and reviewed what she had testified to in Lehigh County, and knew as well
APPENDIX “A”
10
that she was ready and willing to testify and was, in fact, available as she attended the
trial. These discussions however dealt primarily with the May 31, 2008, assault, the
telephone call at 1:10 A.M. on that date, and where Defendant was located at the time
of the call. (N.T., 8/29/18, pp.81, 111).
When Watkins was questioned at the PCRA hearing about Ballas’ claim that
Defendant was with her on October 21, 2007, it was clear that Watkins did not recall
being told this and, by his demeanor, questioned whether he ever was. (N.T., 8/29/18,
pp.104, 107-108, 111, 119-20, 122). Trooper Judge, who participated in the
investigation of both the Carbon County and Lehigh County charges and was present at
every meeting with Ballas, testified unequivocally that Ballas never told him of this
claimed alibi which is clearly contrary to what Ballas wrote in her October 15, 2015,
statement. (N.T., 8/29/18, pp.63-64, 128). Furthermore, in this statement written by
Ballas almost eight years after the event, Ballas wrote, “I told them that on October 21,
2007, John and | shared an apartment and | was always with him, it would be extremely
unlikely that he wouldn't have been there that night.” Yet, by the time of the PCRA
hearing, another three years later, Ballas testified without equivocation that she knew
for a fact Defendant was with her because it was their anniversary, and even recalled
how he went out late that evening to purchase a pack of cigarettes across the street.
Ballas had been in a romantic relationship with Defendant for almost nine years,
still cared for him, and, without doubt, embellished her testimony to help him. This was
further evident during the Lehigh County trial where Ballas not only sought to provide
Defendant with another alibi with respect to the Lehigh County charges, but was caught
in multiple inconsistencies when she attempted to do so. (N.T., 8/29/18, pp.91,
APPENDIX "A"
11
134-35). Simply put, we do not find Ballas’ alibi testimony regarding October 21,
2007, to be credible and do not believe Watkins was ever informed prior to trial about
this claimed alibi. |
Whether Defendant's claim of ineffectiveness for not calling Ballas as a witness
to the May 31, 2008, telephone call and using the location of the cell tower as a means
of determining Defendant's location at the time of the call is of arguable merit must also
be addressed. In contrast to a true alibi defense, Ballas was not with Defendant at the
time of the assault on May 31, 2008. At most, Ballas could testify that she received a
cell phone call from Defendant at 1:10 A.M. on May 31, which was approximately ten
minutes after the time of the assault as testified to by Fields. Although this evidence by
itself does not raise a true alibi defense or make it impossible for Defendant to have
assaulted Fields, Ballas testified at the PCRA hearing, without objection, that the cell
tower which received Defendant's cell phone signal and transmitted the call to her was
located at 3880 Lehigh Street in Whitehall, Lehigh County, Pennsylvania. (N.T., 8/29/18,
p.42).'° Even assuming that Ballas was competent to give this testimony, Ballas was
clearly not qualified to determine the location of Defendant's cell phone and, by
extension, the whereabouts of Defendant in relation to the cell tower. See
Commonwealth v. Nevels, 203 A.3d 229, 240 (Pa.Super. 2019) (describing the initial
six-week training program with yearly updates provided by cell phone companies to
members of the FBI's Cellular Analysis Survey Team (“CAST”) before being qualified to
provide expert testimony with respect to historical cell-site analysis described “as the
* During the Lehigh County trial, Ballas was not permitted to testify as an alibi witness for the October 21,
2007, events in Carbon County because of a failure to provide advance notice to the Commonwealth.
(N.T., 8/29/18, pp.67-68).
‘© Ballas appears to have used an instructional manual provided by Defendant's cell phone provider,
Sprint, to identify the location of the cell tower which picked up Defendant's cell phone signal. (N.T.,
8/29/18, pp.7, 42; Defendant Exhibit No.1b). How this was done was never explained by Ballas.
APPENDIX “A”
12
BrOCESs of analyzing records maintained by the cellular service companies to plot ona’
map what tower(s) and sector(s) a phone used to connect to the provider's network.
The data is used to determine a cell phone's general geographic location at the time the
phone was used to place a call or send a text message."), aff'd, 2020 WL 4758615 (Pa.
2020).
Knowing the location of the cell tower a phone uses to connect to a provider's
network is not alone sufficient to give the location of the phone at the time of the call.
As testified to by the Commonwealth’s expert in Nevels:
It's very important to know that despite what you may have seen in the
movies or on Netflix or whatever, you can't tell the location, the exact
location of where a phone was in time, historically. So | can’t tell you if the
phone was at the corner of Grant Street and you know, a particular street
at any given time. | can't say it was 123 Main Street at some point in time;
but | can say that it used a particular tower and sector.
Nevels, 203 A.3d at 240-41.
For instance, Ballas did not testify and was not qualified as an expert to testify as
to whether cell phones connect to the nearest provider’s specific cell tower; whether any
other Sprint cell tower existed between Fields’ home and the tower in Whitehall with
which Defendant’s phone would otherwise have connected had he been making the call
from some other location closer to Fields’ home; whether, as Watkins testified, if
another tower was busy, the signal would be transferred to a more distant tower, such
as the one in Whitehall; or what the signal strength and range or outer perimeter (i.e.,
the coverage area) was for the cell tower which picked up Defendant's signal. Without
this information, Ballas’ bald assertion that Defendant was a half-hour drive away from
Fields' home at the time this call was made and physically incapable of committing the
assault at 1:00 A.M. is speculative and unreliable. All of this was Defendant’s burden
to meet at the PCRA hearing, and it was not met. See also Commonwealth v. Chmiel,
APPENDIX "A"
13
889 A.2d 501, 546 (Pa. 2005) (Trial counsel's failure to call a particular witness does
not constitute ineffective assistance without some showing that the absent witnesses’
testimony would have been beneficial or helpful in establishing the asserted defense.”).
And while the argument can certainly be made that Watkins failed to conduct a
reasonable investigation regarding this same information, even if this is true, without
knowing the answers to these questions, on what basis can it be determined that
Defendant was prejudiced by Watkins’ failure to investigate."
Reasonable Basis of Trial Counsel’s Conduct
Whether counsel's course of action lacked an objective reasonable basis is the
second Strickland/Pierce factor. Watkins testified repeatedly that the decision not to
call Ballas as a witness was a tactical decision, that he wanted to keep Defendant as
distant as he could from Fields’ home without raising the possibility of Defendant being
close enough to have committed the assaults. While Ballas’ proffered testimony for
"| In Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009), the Pennsylvania Supreme Court stated:
Counsel has a general duty to undertake reasonable investigations or make reasonable
decisions that render particular investigations unnecessary. ... The duty to investigate,
of course, may include a duty to interview certain potential witnesses; and a prejudicial
failure to fulfill this duty, unless pursuant to a reasonable strategic decision, may lead to a
finding of ineffective assistance.
966 A.2d at 535-36 (emphasis added).
Watkins made a strategic decision not to present any evidence that Defendant was not at home at the
time Fields was assaulted on May 31, 2008. Through investigation, Watkins had also learned that the
call tower to which a cell phone signal is transmitted is not necessarily the tower closest to the location
from which the call is placed. Whether Watkins should have conducted further investigation on this point
can certainly be questioned, however, with what Watkins knew - including the uncertainty of the exact
time of the assault, sometime between 12:00 A.M. and 1:00 A.M., with this variance providing ample
opportunity for Defendant to have assaulted Fields and still been present at the celi tower at 1:10 A.M.
(N.T., 8/29/18, pp.126, 129) - and in light of his chosen strategy, the decision not to investigate further -
may well have been warranted. Nevertheless, even if Watkins’ failure to investigate the cell phone
records further were found to be unreasonable, Commonwealth v. Steele, 961 A.2d 786, 825 (Pa. 2008)
("reasonableness of a particular investigation depends upon evidence known to counsel, as well as
evidence that would cause a reasonable attorney to conduct a further investigation”), and not excused by
trial strategy, Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa. 2000) (“Strategic choices made
following less than complete investigation are reasonable precisely to the extent that reasonable
professional judgment supports the limitation of the investigation."), an unexcused failure to make a
reasonable investigation is not per se prejudicial or entitle a defendant to Strickland relief. Johnson, 966
A.2d at 536,
APPENDIX “A”
14
October 21, 2007, was entirely consistent with that objective and with counsel's trial
strategy, her testimony concerning May 31, 2008, put Defendant outside his home,
within striking distance of Fields, and overall would have strengthened the
Commonweaith’s case.
In evaluating whether-counsel’s actions lacked an objective reasonable basis,
critical to making this evaluation is the fact that Defendant was being tried at one time
for two separate assaults connected by their similarity to one another and what was
said: both involved a masked intruder dressed in black with an Hispanic accent breaking
into an elderly woman's home late at night to sexually assault her; both involved the
same home, the same victim and, as testified to by the victim, the same assailant: and
the assailant in the first assault stated, "I'll be back” and, in the second assault, “I’m
back.”
By itself, the case against Defendant for the first attack was weak: an unidentified
stranger entering Fields’ home dressed in black, wearing a Scream-like mask, with no
ties to Defendant. In contrast, the evidence linking Defendant to the second attack was
difficult to refute: a security video depicting a person resembling Defendant purchasing
condoms from a convenience store within a mile of the victim’s home, within an hour of
the assault (N.T., 1/8/13, p.199; N.T., 8/29/18, pp.62, 127); a palm print matching
Defendant's found on the outside of the victim’s window; and a box of condoms of the
same brand and type as those purchased at the convenience store found inside the
victim’s home after the assault. Nevertheless, possible room for doubt existed: the
store video was of poor quality and the clerk only saw the purchaser on one occasion,
late at night, for a brief moment; and not only is fingerprint analysis an inexact science
having, as it does, a subjective element subject to differences of opinion, at least one of
APPENDIX *A”
16
the lines from the latent palm print lifted from the exterior window sill of Fields’ window
did not appear to match the known palm print from Defendant. (N.T., 1/7/13, pp.51-52,
90-91; N.T., 1/8/13, p.232; N.T., 1/9/13, pp.307-308). If additional evidence also
showed Defendant was in fact in the area at the time of the assault, this could be
devastating to the defense. This was the dilemma trial counsel faced if he put Ballas
on the stand.
Absent what happened on May 31, 2008, the Commonwealth's case against
Defendant for October 21, 2007, was weak. The possibility that Defendant may have
been the intruder only became known because of the May 31, 2008, assault for which
the Commonwealth had strong, albeit not ironclad evidence connecting Defendant to
this offense. While Ballas’ testimony about May 31, 2008, could cast further doubt on
whether Defendant was at Fields’ home on that date, it came at a hefty price: Ballas
definitively identified Defendant as the person in the videotape’? and it placed
Defendant in the area of the assault, at the time of the assault, with time to commit the
assault. (N.T., 8/29/18, pp.126, 129). Moreover, it came with the realization that
Ballas knew multiple other calls on Defendant's cell phone records for May 31, 2008,
involved drug dealing — in fact, Ballas acknowledged being with Defendant in Palmerton
earlier in the day on May 30, 2008, when Defendant was selling drugs (N.T., 8/29/18,
pp.34-35, 41-42) - which, if made known to the jury, would be devastating. 1%
12 At trial, the Commonwealth called the sales clerk at the convenience store as part of its case-in-chief. .
At no time during her testimony did the sales clerk testify Defendant was the person who purchased the
condoms on May 31, 2008, or that Defendant was the person depicted in the videotape. The clerk's
testimony was presented primarily to authenticate the tape. (N.T., 1/8/13, pp.210-215).
13 Defendant did not testify at either his jury trial or the PCRA hearing. When colloquized at trial,
Defendant's criminal record contained a number of crimen faisi convictions with which Defendant might
be impeached. (N.T., 1/9/13, pp.282-84; N.T., 8/29/18, pp.82, 86-87, 90). Additionally, had Defendant
testified about his phone call to Ballas at 1:10 A.M. on May 31, 2008, he would likely have been subject to
cross-examination on the earlier two missed phone calls from Ballas and other phone calls made by him
that evening, with the risk that his drug dealing would be disclosed. (N.T., 8/29/18, pp.82, 89}. This risk
APPENDIX “A”
16
Additionally, and cértainly not controlling, Watkins knew that Ballas testified for
Defendant during the Lehigh County trial five months earlier, at which the allegations
and evidence linking the Defendant to the Carbon County assaults was placed in
evidence under Pa.R.E. 404(b)(2), and that Ballas’ testimony was of no benefit.
In examining whether a “reasonable basis” exists for trial counsel’s actions where
matters of strategy and trial eaetits are in issue, given the many intangibles involved,
review of trial counsel’s conduct is deferential. Commonwealth v. Rivers, 786 A.2d
923, 930 n.5 (Pa. 2001). “Trial counsel will be deemed to have acted reasonably if the
course chosen by trial counsel had some reasonable basis designed to effectuate his
client's interests.” Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009). “Moreover,
a Claim of ineffectiveness will not succeed by comparing, in hindsight, the trial strategy
that trial counsel actually employed with the alternatives forgone,” Miller, 987 A.2d at
653 - even if the alternatives forgone offered a more logical course of action — as long
as counsel's decisions had a reasonable basis. Mason, 130 A.3d at 618. This is not
to say the PCRA court “disregard[s] completely the reasonableness of other alternatives
available to counsel,” however, “the balance tips in favor of a finding of effective
assistance as soon as it is determined that trial counsel's decision had any reasonable
basis.” Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007) (citation and
quotation marks omitted). “[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.” Mason,
130 A.3d at 618 (citation and quotation marks omitted).
was éliminated by Defendant's decision not to testify. Had Ballas testified, whether she would have been
cross-examined about her knowledge of Defendant's other calls would have depended on what she
APPENDIX “A”
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The dilemma Watkins faced on whether to call Ballas as a witness was not an
easy one. Under the circumstances the choice made, to forgo Ballas' testimony, had a
reasonable basis and the alternative, to have Ballas testify, did not offer a significantly
greater potential chance for success. See also Commonwealth v. Charleston, 94 A.3d
1012, 1019 (Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014).
Prejudice
The third and final factor to be considered under the Strickland/Pierce standard is
prejudice: was Defendant prejudiced by counsel's deficient conduct. “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show that there is
a reasonable probability that but for the act or omission in question the outcome of the
proceeding would have been different.” Commonwealth v. Wallace, 724 A.2d 916, 921
(Pa. 1999),'4 “When a defendant challenges a conviction, the question is whether
testified to on direct examination. (N.T., 8/29/18, p.4). While this risk might have been slight, the risk
nevertheless existed.
'4 Prejudice, as so defined, requires that the PCRA court consider the totality of the evidence presented
by the Commonwealth at the original trial and the evidence presented in defense, to which must be added
the evidence adduced at the PCRA hearing; re-weigh all such evidence: and determine whether the
absence at trial of the evidence presented at the PCRA hearing creates a reasonable probability that the
verdict would have been different. Commonwealth v. Johnson, 2020 WL 4211747 **4, 5 (Pa.Super.
2020) (en banc) (citing and quoting from Andrus v. Texas,__- U.S. __, 140 S.Ct. 1875, L.Ed.2d
(2020).
In making this evaluation, the PCRA court is required to assess the credibility of the witnesses
presented at the PCRA hearing. Commonwealth v. Johnson, 966 A.2d at 540.
In assessing credibility . . ., the question for the PCRA court is not whether the jury in fact
would have credited [Defendant's] new evidence and his recast alibi evidence. Instead,
the question is whether the nature and quality of the evidence is such that there is a
reasonable probability that the jury would have credited it and rendered a more favorable
verdict. That assessment must include a recognition of the impeachability of the
witnesses, and not merely a viewing of their testimony in a most favorable light.
fd, at 542.
As already discussed in the text, we found Ballas’ testimony that she told Watkins she was with
Defendant in Emmaus on October 21, 2007, at the time of the assault to be biased and not credible.
Further, while we have accepted Ballas’ testimony that she was on the phone with Defendant on May 31,
2008, at 1:10 A.M. for forty-nine seconds, we are not convinced that this testimony without additional
foundational testimony from an expert witness as to Defendant's location (or that of his cell phone) at the
time of the call, as well as the extrinsic dangers which accompanied it (i.e., Ballas’ positive identification
of Defendant on the security videotape, placing Defendant outside his home in close proximity to Fields,
and knowledge of Defendant's drug dealing), creates a reasonable probability that the outcome of the trial
would have been different.
APPENDIX “A”
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there is a reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. "A
reasonable probability does not mean that the defendant would more likely than not
have received a different verdict with the evidence; it means only that the likelihood of a
different result is great enough to undermine confidence in the outcome of the trial.”
Commonwealth v. Johnson, 174 A.3d 1050, 1056 (Pa. 2017) (citation and quotation
marks omitted). “Such a_ showing effectively demonstrates that counsel's
ineffectiveness ‘so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place,’ as required by Section
9543(a)(2)(ii) of the PCRA.” Wallace, 724 A.2d at 921.
In analyzing this factor, we repeat what we said earlier: Defendant has failed to
meet his burden of showing the cell phone call at 1:10 A.M. on May 31, 2008, was
made by Defendant from a location which precluded him from assaulting Fields
between 12:00 and 1:00 A.M. on May 31, 2008, the timeframe within which the
Commonwealth's evidence placed Defendant in Fields’ home. (N.T., 8/29/18, pp.126,
129); cf. Commonwealth v. Johnson, 966 A.2d at 538 (“At the core of an alibi defense
is, of course, consistency between the date and time of the crime and that of the
defendant's alibi.”). Without eliminating this possibility, Ballas’ testimony placing
‘Defendant within striking distance of Fields’ home at the time of the assault on May 31,
2008, would only have reinforced the strength of the Commonwealth's case against
Defendant for the May 31, 2008, assault and, in the process, also hurt Defendant's
chances of acquittal for the October 21, 2007, assault.
Ballas’ testimony had the potential of undermining the defense strategy at its
core. Added to this was Ballas’ definitive identification of Defendant in the surveillance
APPENDIX “A
19
video at the Convenient Food Mart and knowledge that Defendant was actively
engaged in dealing drugs in the Palmerton area on the night of the assault. Given
these risks and the strength of the Commonwealth's case as presented at trial,
Defendant has not met his burden of demonstrating that had Ballas been called to
testify and presented the testimony offered at the PCRA hearing, there is a reasonable
probability the jury’s verdict would have been different, that is, that the absence of
Ballas’ testimony denied Defendant a fair trial. Cf Johnson, 966 A.2d at 540 ("To
properly grant Strickland relief here, the PCRA court would have to find that the
uncalled fact witnesses and the deficiently prepared alibi witnesses had relevant
evidence that could have aided [Defendant's] defense, and that there is a reasonable
probability that the introduction of such evidence would have altered the outcome of the
trial. That assessment must necessarily include some — of a finding that the
witnesses were credible... .”).
CONCLUSION
“[T]he constitutional guarantee to effective assistance of counsel exists to ensure
a criminal defendant receives a fair trial.”. Commonwealth v. Diaz, 226 A.3d at
1008; Kimball, 724 A.2d at 330-32. While in hindsight perhaps a different strategy may
have been pursued by trial counsel, we are not convinced that the strategy actually
pursued did not have a reasonable basis in advancing Defendant's interests, As
discussed, there were risks involved whether or not Ballas was called to testify; the
record discloses a reasonable basis why trial counsel chose not to call Ballas; and we
are not convinced that had Ballas testified, there is a reasonable probability the
suteome of the trial would have changed, that without her testimony “no reliable
adjudication of guilt or innocence could have taken place.” 42 Pac.SA. §
APPENDIX “A”
20
9543(a)(2)(i-i). Defendant received a fair trial and that, ultimately, is what matters.
Diaz, 226 A.3d at 1008.
BY THE COURT:
QOL
Pal
APPENDIX "A”
21