Com. v. Cantrell, K.

J-S33030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KYLE CANTRELL :
:
Appellant : No. 2036 EDA 2021
Appeal from the PCRA Order Entered September 24, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002695-2012
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 7, 2023
Appellant, Kyle Cantrell, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his first petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court set forth the relevant facts of this appeal as follows:
[Appellant] agreed to meet victim John Uhl (hereby
“Victim”) in order for the Victim to lend [Appellant] money.
While walking down the street with Victim, [Appellant]
inserted his hand into Victim’s pocket and ordered Victim to
surrender all his money. Consequently, Victim then handed
[Appellant] about $900. Thereupon, [Appellant] pointed a
semi-automatic firearm at Victim, as they were face to face,
and threatened to shoot the victim if he did not walk away.
In a call to the police, the Victim reported the robbery. The
police arrived and observed [Appellant] who fled as the
police approached. Police Officer Ann Brown testified that
she observed [Appellant] throw a gun into a flowerpot, and
the firearm was recovered. The police brought [Appellant]
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
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back to the scene where Victim identified him as the
perpetrator.
At trial, the Victim testified that he did not remember the
Robbery or making a statement to police but, nonetheless,
adopted his statement to police by identifying biographical
information, his signature, and his handwriting. Victim also
stated that he did not remember testifying at his preliminary
hearing. The assistant district attorney then cross-
examined the Victim as to his two prior, inconsistent
statements to the police. Twice defense counsel
unsuccessfully objected to the admission of the prior
statement to police. The assistant district attorney also
asked the Victim whether he had texted his mother that he
was worried he would be shot if he testified against
[Appellant]. Twice defense counsel unsuccessfully objected
to this line of questioning. The victim at first denied this
was the reason why he did not testify in court, but quickly
admitted “I guess it had something to do with it,” and that
it “might be part of the reason why [he] repressed [his
memory of the robbery].” N.T. [Trial,] 6/25/13, [at] 119-
20.
(PCRA Court Opinion, filed 12/13/21, at 2-3).
On June 28, 2013, a jury convicted Appellant of two counts of robbery,
one count of possessing an instrument of crime (“PIC”), and violations of the
Uniform Firearms Act. On September 27, 2013, the court imposed an
aggregate sentence of twelve (12) to twenty-four (24) years’ imprisonment.
This Court affirmed the judgment of sentence on December 16, 2014, and our
Supreme Court denied Appellant’s petition for allowance of appeal on April 9,
2019.2 See Commonwealth v. Cantrell, 116 A.3d 688 (Pa.Super. 2014)
____________________________________________
2 After this Court affirmed the judgment of sentence, Appellant did not
immediately file a petition for allowance of appeal. Consequently, the PCRA
(Footnote Continued Next Page)
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(unpublished memorandum), appeal denied, 651 Pa. 576, 206 A.3d 491(2019).
Appellant timely filed a pro se PCRA petition on July 16, 2019. The court
appointed counsel, who filed an amended petition on June 23, 2020. In it,
Appellant raised various claims of ineffective assistance of trial counsel for
failing to object to certain evidence and failing to preserve a challenge to the
weight of the evidence. On December 15, 2020, the Commonwealth filed a
motion to dismiss the PCRA petition. On June 25, 2021, the PCRA court issued
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a
hearing. Appellant did not respond to the Rule 907 notice, and the court
dismissed the current PCRA petition on September 24, 2021.
Appellant timely filed a notice of appeal on October 1, 2021. On October
19, 2021, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant timely filed his Rule
1925(b) statement on October 21, 2021.
Appellant now raises three issues for our review:
Trial counsel was ineffective by failing to preserve
Appellant’s weight of the evidence claim by not filing the
necessary post-trial motions thereby precluding the raising
of the issue on appeal[.]
Trial counsel was ineffective for failing to preclude the
introduction of text messages which falsely created the
impression of witness tampering[.]
____________________________________________
court reinstated Appellant’s direct appeal rights nunc pro tunc on January 31,
2018.
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Trial counsel was ineffective for failing to object/move to
strike the testimony of [Victim] because of his lack of
memory/personal knowledge of the case.
(Appellant’s Brief at 5).
“Our standard of review of [an] order granting or denying relief under
the PCRA calls upon us to determine whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.”
Commonwealth v. Parker, 249 A.3d 590, 594 (Pa.Super. 2021) (quoting
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.Super. 2013)). “The
PCRA court’s factual findings are binding if the record supports them, and we
review the court’s legal conclusions de novo.” Commonwealth v. Prater,
256 A.3d 1274, 1282 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d
386 (2021).
In his first issue, Appellant asserts that direct appeal counsel attempted
to challenge the weight of the evidence supporting Appellant’s convictions, but
this Court determined that the argument was waived due to trial counsel’s
failure to preserve it. Appellant argues that trial counsel’s “failure to preserve
the [weight] argument in a post-sentence motion is a clear example of per se
ineffectiveness.” (Appellant’s Brief at 11). Appellant concludes that he should
be allowed to challenge the weight of the evidence nunc pro tunc due to trial
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counsel’s ineffectiveness.3 We disagree.
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
____________________________________________
3 Regarding Appellant’s argument that trial counsel’s failure to preserve the
weight claim amounted to per se ineffectiveness, we emphasize that “a PCRA
petitioner is entitled to an appeal nunc pro tunc where prior counsel’s actions,
in effect, entirely denied his right to a direct appeal, as opposed to a PCRA
petitioner whose prior counsel’s ineffectiveness may have waived one or more,
but not all, issues on direct appeal.” Commonwealth v. Halley, 582 Pa.
164, 173, 870 A.2d 795, 801 (2005) (quoting Commonwealth v.
Hernandez, 755 A.2d 1, 9 n.4 (Pa.Super. 2000)). Here, Appellant received
a direct appeal where this Court addressed some of his claims on their merits.
See Cantrell, supra. Accordingly, this is not a case of per se ineffectiveness,
and we proceed to analyze prior counsel’s inaction under the traditional, three-
part test for ineffectiveness. See Commonwealth v. Grosella, 902 A.2d
1290, 1293-94 (Pa.Super. 2006) (explaining petitioner was not entirely denied
right to direct appeal, and only some of petitioner’s issues were waived by
prior counsel’s inaction; petitioner must proceed under auspices of PCRA, and
court should apply traditional, three-prong test for determining whether prior
counsel was ineffective).
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quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004) (quoting Commonwealth v. Geathers,
847 A.2d 730, 733 (Pa.Super. 2004)).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
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.
Commonwealth v. C. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
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Sandusky, supra at 1043-44).
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
The following principles govern this Court’s review of challenges to the
weight of the evidence:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the … verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
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(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
A defendant must raise a weight claim with the trial court in the first
instance. See Pa.R.Crim.P. 607(A). Specifically, “a weight challenge must be
preserved either in a post-sentence motion, a written motion before
sentencing, or orally prior to sentencing.” Commonwealth v. Cox, 231 A.3d
1011, 1018 (Pa.Super. 2020). “An appellant’s failure to avail himself of any
of the prescribed methods for presenting a weight of the evidence issue to the
trial court constitutes waiver of that claim.” Id.The Crimes Code defines the offense of robbery in pertinent part, as
follows:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course
of committing a theft, he:
* * *
(ii) threatens another with or intentionally
puts him in fear of immediate serious bodily injury;
* * *
(iv) inflicts bodily injury upon another or
threatens another with or intentionally puts him in fear
of immediate bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii), (iv). PIC is defined as:
§ 907. Possessing instruments of crime
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(a) Criminal instruments generally.―A person
commits a misdemeanor of the first degree if he possesses
any instrument of crime with intent to employ it criminally.
18 Pa.C.S.A. § 907(a).
Further, the Uniform Firearms Act provides, in relevant part, as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an
offense enumerated in subsection (b), within or without
this Commonwealth, regardless of the length of sentence
or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control,
sell, transfer or manufacture a firearm in this
Commonwealth.
* * *
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), any
person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business,
without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
* * *
§ 6108. Carrying firearms on public streets or public
property in Philadelphia
No person shall carry a firearm, rifle or shotgun at any
time upon the public streets or upon any public property in
a city of the first class unless:
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(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section
6106(b) of this title (relating to firearms not to be carried
without a license).
18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108.
Instantly, this Court already summarized the relevant evidence
supporting Appellant’s convictions in its decision on Appellant’s direct appeal:
The jury properly heard [Victim’s] preliminary hearing
testimony as substantive evidence in which [Victim] stated
that [Appellant] took all $910 that the victim had on him,
and then threatened him with a gun when the victim tried
to get it back. Viewed in the light most favorable to the
Commonwealth, the evidence overwhelmingly
demonstrates that [Appellant] was guilty beyond a
reasonable doubt.
* * *
[Appellant] told the victim he had a gun, pulled it out and
pointed it at [Victim] during the course of the robbery.
Shortly thereafter, while fleeing from police, [Appellant]
threw the gun into a flower pot. [Appellant] stipulated that
he had been convicted of Possession with Intent to Deliver….
[Appellant] also stipulated that he had no valid license to
carry a firearm. Together, the evidence satisfied each of the
elements on all three weapons charges.
Cantrell, supra at 7 (quoting Trial Court Opinion, filed 6/30/14, at 5-6).
The PCRA court reevaluated this evidence and concluded that Appellant
“fails to identify any evidence used in his conviction that would ‘shock the
conscience of the court.’” (PCRA Court Opinion at 4). Given the relevant
principles governing challenges to the weight of the evidence, we cannot say
that the PCRA court committed an error of law in reaching this conclusion.
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See Champney, supra; Prater, supra. Therefore, Appellant did not suffer
prejudice as a result of trial counsel’s failure to preserve a weight challenge
for direct appeal, and Appellant is not entitled to relief on his first claim. See
Spotz, supra.In his second issue, Appellant contends that the prosecutor questioned
Victim about text messages that Victim had sent before trial. “In short, the
text messages were supposedly sent by [Victim] to his mother expressing a
concern that he would be shot or harmed if he testified in this case.”
(Appellant’s Brief at 11). Appellant acknowledges that trial counsel made a
pretrial motion in limine to preclude the text messages. Nevertheless,
Appellant argues that trial counsel should have raised another objection or
called for a sidebar when the prosecutor commenced her line of questioning
about the texts.4 Appellant maintains that trial counsel did not have a
reasonable basis for failing to object, and Appellant suffered prejudice
“because the jury heard that [Victim] received text messages saying that if
he appeared in court that he would be shot.” (Id. at 12-13). Appellant
concludes that he is entitled to a new trial due to counsel’s purported
ineffectiveness. We disagree.
“Relevance is the threshold for admissibility of evidence.”
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4 Appellant notes that trial counsel “did object to the question that elicited the
text message, but the objection was for leading the witness and not because
the text was unfairly prejudicial or not properly authenticated.” (Appellant’s
Brief at 12).
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Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),
appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more
or less probable, or tends to support a reasonable inference
or proposition regarding a material fact. Relevant evidence
may nevertheless be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal
denied, 656 Pa. 9, 219 A.3d 597 (2019) (internal quotation marks omitted).
Regarding the exclusion of evidence, this Court has observed:
A motion in limine is used before trial to obtain a ruling on
the admissibility of evidence. It gives the trial judge the
opportunity to weigh potentially prejudicial and harmful
evidence before the trial occurs, thus preventing the
evidence from ever reaching the jury. A motion in limine …
precludes evidence that was constitutionally obtained but
which is prejudicial to the moving party.
Commonwealth v. A. King, 689 A.2d 918, 921 (Pa.Super. 1997) (internal
citations and quotation marks omitted).
Instantly, the parties discussed the admissibility of the text messages
prior to the start of trial. At that time, trial counsel claimed that the prosecutor
“just handed” over printouts of the text messages “give or take, 45 minutes”
earlier. (N.T. Trial, 6/25/13, at 66). Trial counsel immediately requested “an
offer of proof with respect to these documents as to what [the prosecutor]
intends on doing with them, how she intends to admit them, and for what
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purpose[.]” (Id.) The prosecutor responded that Victim might “testify in a
manner that is not consistent with his previous testimony.” (Id. at 67). The
prosecutor wanted to introduce the text messages “to show why [Victim] is
testifying inconsistently.” (Id. at 68). Trial counsel then made a motion in
limine “to limit any and all questioning” about the text messages. (Id. at 71).
Before trial counsel provided specific reasons in support of his motion, the
court cut him off. (See id.) The court announced that it wanted to start the
trial, and it would address the motion in limine after Victim took the stand.
(See id. at 71-72).
Trial commenced shortly thereafter, and the prosecutor presented
Victim as her first witness. (See id. at 88). At the conclusion of the direct
examination, the prosecutor began to explore Victim’s feelings about
participating in the trial. (See id. at 117). During this line of questioning,
the prosecutor brought up the text messages by asking: “When your mom got
in touch with you this afternoon, did you tell her that you were scared to
testify?” (Id. at 119). Trial counsel immediately objected, but the court
permitted the witness to continue before trial counsel could provide the basis
for his objection. (See id.) The prosecutor continued to question Victim about
the text messages, and trial counsel raised another objection based upon the
prosecutor leading the witness. (See id.) Again, the court overruled the
objection. (See id.)
Contrary to Appellant’s assertions, our review of the record confirms
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that trial counsel adequately attempted to preclude the introduction of
evidence regarding the text messages. We reiterate that counsel cannot be
found ineffective for failing to raise objections that were, in fact, raised. See
Commonwealth v. Tedford, 598 Pa. 639, 707, 960 A.2d 1, 41 (2008)
(explaining claim that trial counsel was ineffective for supposedly failing to
object clearly lacked arguable merit because trial counsel did, in fact, object
to the presentation of evidence). Therefore, there is no arguable merit to
Appellant’s assertion that trial counsel was ineffective for failing to preclude
the introduction of the text messages, and Appellant is not entitled to relief
on his second claim. See Smith, supra; Poplawski, supra.In his third issue, Appellant contends that Victim had trouble
remembering the robbery. When Victim explained that he had blocked certain
events from his memory, the prosecutor impeached Victim with his original
statement to the police and his preliminary hearing testimony. Appellant
complains that Appellant’s prior inconsistent statements were not admissible
as substantive evidence because Victim’s poor memory left him effectively
unavailable for cross-examination concerning the prior inconsistent
statements. Appellant insists that trial counsel should have objected to the
introduction of the prior inconsistent statements on this basis. Appellant
maintains that trial counsel had no strategic reasons for failing to object, and
Appellant suffered prejudice due to counsel’s inaction. Appellant concludes
that he is entitled to a new trial due to counsel’s purported ineffectiveness.
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We disagree.
Hearsay is an out-of-court statement made by a declarant, which a party
seeks to offer into evidence to prove the truth of the matter asserted in the
statement. Pa.R.E. 801(c). Generally, hearsay is not admissible except as
provided by the Pennsylvania Rules of Evidence, by other rules prescribed by
the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale
for the hearsay rule is that hearsay is too untrustworthy to be considered by
the trier of fact.” Commonwealth v. Charlton, 902 A.2d 554, 559
(Pa.Super. 2006), appeal denied, 590 Pa. 655, 911 A.2d 933 (2006).
“Exceptions have been fashioned to accommodate certain classes of
hearsay that are substantially more trustworthy than hearsay in general, and
thus merit exception to the hearsay rule.” Id.It is long settled that a prior inconsistent statement may be
used to impeach a witness. Further, a prior inconsistent
statement may be offered not only to impeach a witness,
but also as substantive evidence if it meets additional
requirements of reliability.
Commonwealth v. Watley, 153 A.3d 1034, 1040-41 (Pa.Super. 2016),
appeal denied, 641 Pa. 750, 169 A.3d 574 (2017) (internal citations and
quotation marks omitted).
Prior inconsistent statements also can be admitted as
substantive evidence provided the declarant testifies at trial
and is subject to cross-examination concerning the
statement and one of the following is true: 1) the prior
inconsistent statement was given under oath subject to the
penalty of perjury at a trial, hearing, deposition, or other
proceeding; 2) the prior inconsistent statement is contained
within a signed writing adopted by the declarant; and/or, 3)
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the rendition of the statement offered is a verbatim
contemporaneous recording of an oral statement.
Commonwealth v. Henkel, 938 A.2d 433, 442-43 (Pa.Super. 2007), appeal
denied, 598 Pa. 756, 955 A.2d 356 (2008). See also Pa.R.E. 803.1 (stating
same).
Instantly, the PCRA court determined that this claim did not possess
arguable merit:
Victim’s prior statements—one made in writing to the police
during their investigation and adopted, and one made under
oath at a preliminary hearing—were both made under
reliable circumstances. Thus, these prior statements
represent hearsay exceptions.
In any event, [Appellant] contends that because the Victim
refused to answer questions about prior statements,
[Appellant] was denied the ability to cross-examine the
Victim, and the Victim was unavailable for cross-
examination. [Appellant] argues that Victim was
unavailable for cross-examination because he refused to
answer questions about a prior statement. See
Commonwealth v. Romero, 722 A.2d 1014 (Pa. 1999)
(witness was not available for cross-examination when
witness refused to answer questions about prior statement).
* * *
However, in Romero, the witness refused to testify or
answer any questions, including questions concerning his
prior inconsistent statements. Here, unlike in Romero, the
assistant district attorney questioned the Victim about the
prior statements, and the Victim answered questions about
the prior statements. The Victim answered in the negative
to nearly every question about whether he recalled making
the statements and the events surrounding his making the
statements. Furthermore, Victim was then subject to cross-
examination, where defense counsel used the opportunity
to ask him about his statements to police and at the
preliminary hearing. Again, the Victim answered every
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question concerning whether he recalled making the
statements and the events surrounding making the
statements in the negative. Therefore, the instant matter
differs critically from the facts of Romero where the witness
refused to answer any questions about his prior statements.
The instant matter is more factually similar to
[Commonwealth v. Carmody, 799 A.2d 143 (Pa.Super.
2002),] where a witness being cross-examined was willing
to testify regarding her prior inconsistent statements,
despite claiming not to remember making these statements.
(PCRA Court Opinion at 7-8) (some internal citations omitted).
Our review of the trial transcript and relevant case law confirms the
court’s conclusion. Trial counsel conducted a full and thorough cross-
examination of Victim. (See N.T. Trial, 6/25/13, at 124-131). Rather than
refusing to answer trial counsel’s questions, Victim simply did not remember
the facts surrounding the robbery. This inability to remember did not render
Victim’s prior inconsistent statements inadmissible. See Carmody, supra at
148-49 (explaining victim was subject to cross-examination concerning her
written statement, despite victim’s testimony that statement was unreliable
due to alcohol-induced blackout that she allegedly experienced when
statement was written; thus, signed and adopted statement was admissible
as substantive evidence). Therefore, there is no arguable merit to Appellant’s
assertion that trial counsel was ineffective for failing to object to Victim’s
testimony, and Appellant is not entitled to relief on his third claim. See
Smith, supra; Poplawski, supra. Accordingly, we affirm the order denying
PCRA relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2023
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