Com. v. Dukulah, S.

J-S31019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUMO DUKULAH :
:
Appellant : No. 2172 EDA 2021
Appeal from the PCRA Order Entered October 5, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007817-2013
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 19, 2022
Appellant Sumo Dukulah appeals from the order denying his timely first
Post Conviction Relief Act1 (PCRA) petition. Appellant contends that the PCRA
court erred in denying his petition, and he alleges that his trial counsel was
ineffective for failing to call a witness, failing to move for a mistrial, and
making a factual misstatement relative to medical evidence. After review, we
affirm.
The PCRA court summarized the factual background in this matter as
follows:
[The victim, (K.D.),] was born in Liberia, and at the age of seven
she immigrated to the United States with . . . Appellant and Sonnie
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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Dukulah [(Sonnie)].[2] Shortly after their arrival, the family
settled into a home on Riverside Drive in Philadelphia, PA. [K.D.]
testified that from the time she was eight years old until she was
sixteen years old, Appellant forced her to have vaginal intercourse
with him and that he subjected her to multiple acts of sexual
abuse. [K.D.] explained that Appellant’s acts of sexual assault
and abuse occurred in the family home, most often at a time when
[Sonnie] was at work.
[K.D.] described one incident when [Appellant] came into her
bedroom and hit her in the head while she was asleep. He asked
if she used his computer and she advised him that she used it to
do her homework. He then left and went into the bathroom,
returning with a wet towel which he wrapped around her mouth.
At that point, Appellant removed [K.D.’s] pants and inserted his
penis into her vagina. [K.D.] described another occasion while
she was in elementary school when [Sonnie] was at home and
asleep during which Appellant had vaginal intercourse with [K.D.]
on the side of a wall in the house before she left to go to school.
[K.D.] testified that at first Appellant did not use a condom during
intercourse, but that he later used condoms, and when none were
available, he used rubber gloves and plastic bags instead. [K.D.]
stated that on multiple occasions, Appellant had oral and anal
sexual intercourse with her. [K.D.] said that when [Appellant]
inserted his penis into her anus it caused her pain so badly and
that she could not walk. [K.D.] described that Appellant also
licked her vagina and put his mouth on her breasts.
[K.D.] testified that Appellant threatened that if she ever said
anything about the incidents to anyone, he would send her back
to Africa. [K.D.] dreaded that she might be returned to Africa,
where she would be faced with rejection from all of her family and
friends, abject poverty, and be left with the life of a beggar. [K.D.]
stated that at one point she threatened to tell [Sonnie] what was
happening, and Appellant responded, “go ahead, because she
won’t believe you.”
[K.D.] related that at [Sonnie’s] 40th birthday celebration,
Appellant was inebriated, and he told [Sonnie] that he had sex
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2 The record reflects that Sonnie is K.D.’s paternal aunt, and Appellant is
Sonnie’s husband and K.D.’s uncle. The parties stipulated that Sonnie and
Appellant raised K.D., and K.D. refers to them as her mother and father. See
N.T. 3/5/21, at 50–52.
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with the child. He said that he thought the person he was having
sex with was [Sonnie]. [Sonnie] was enraged and blamed [K.D.].
[Sonnie] demanded that she not report the incident to anyone
else, saying that it would be an embarrassment to their family.
As of the day of trial, [Sonnie] continues to refuse to speak to
[K.D.] and has let [her] know that she wants nothing more to do
with her.
At one point, [K.D.] attempted suicide by taking pills, which
caused her extreme dizziness. [K.D. walked] to the laundry room
in their apartment complex, and when she arrived there the
leasing director for the apartment complex, Sophia Edwards,
noticed her condition and inquired. Edwards escorted [K.D.] to
the property manager’s office, and during their discussion [K.D.]
told the women that things were happening in her home with
[A]ppellant, but she was not specific. [K.D.] testified that she was
afraid that the women would call her parents, so she quickly
returned home.
Edwards and the property manager nevertheless contacted the
anonymous hotline at the Philadelphia Department of Human
Services (hereinafter, DHS). Shortly thereafter, a social worker
from DHS came to [K.D.’s] home at a time [K.D.], then 13, was
home alone and she asked [K.D.] about what was happening with
Appellant and the sexual abuse. [K.D.] was fearful that the social
worker would contact her parents, and that her parents would
send her back to Africa, and she refused to tell Edwards what was
actually occurring.
[Y.G.], a close friend and classmate of [K.D.], testified that while
walking home from school [K.D.] told her that Appellant was
forcing her to have sex with him. [Y.G.] state[d] that on that day,
after school, [K.D.] went home and later came to her house saying
that Appellant demanded that she return to school to retrieve an
iPod that [K.D.] left there. The two young girls went back to the
school, however it was after 5:00 P.M.[,] and the school was
closed. [K.D.] was panicked and told [Y.G.] that if she did not
return home with the iPod[, Appellant] would force her to have
sex with him.
[K.D.] then told [Y.G.] that since they first immigrated to the
United States Appellant had been forcing her to have vaginal and
anal sex, and sexually assaulting her. At the time, [Sonnie] was
at work and [K.D.] was afraid that Appellant would rape and
assault her again. Two other close friends and classmates, [A.N.]
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and [M.N.], were also with [K.D.] and [Y.G.] when [K.D.] related
Appellant’s crimes.
On April 16, 2013, [K.D.], then in tenth grade, came to school
crying and had marks on her body. [K.D.] told [Y.G.] that
[Appellant] had beaten her, that she was afraid to return home,
and that she was going to commit suicide. [K.D.] stated that she
“would rather be dead than to live through this again.” [K.D.] told
[Y.G.] that Appellant raped her the Sunday before and that she
was beaten on the morning of the rape. [Y.G.] reported what
[K.D.] told her to one of the deans and a counselor at their high
school. Tasha Torres, a social worker at DHS, testified that on
April 16, 2013, she was called to [the school] where she met with
[K.D.] and her three friends. [K.D.] reported to Torres that from
the age of ten, she had been sexually abused by Appellant, that
he had been forcing her to have sexual intercourse with him on a
regular basis, and that the abuse was ongoing. [K.D.] stated that
she told [Sonnie] about the abuse approximately one year prior,
and [Sonnie] confronted Appellant, who then told her . . . that it
happened once while he was intoxicated and that it was an
accident. [K.D.] explained that [Sonnie] became upset with her
for allowing the incident to happen. [K.D.] told Torres that she
was afraid to return home because Appellant threatened that if
she reported the incidents to anyone she would be sent back to
Liberia. After reporting the incidents to Torres, DHS obtained an
order of protective custody, the Philadelphia Police Special Victims
Unit was contacted, and [K.D.] was transported to St.
Christopher’s Hospital, where she was given a physical
examination and a rape kit. [K.D.] was then placed in the custody
of [Y.G.’s] mother, where she remains to the present.
Philadelphia Police Officer Daniel Soler testified that on April 16,
2013, he responded to a radio dispatch to St. Christopher’s
Hospital where he met with [K.D.] and Torres. Soler was informed
that [K.D.] reported a rape that occurred on April 14, 2013, that
she had been given a physical examination, and that a rape kit
had been prepared.
In defense, Appellant presented several witnesses who testified
as to Appellant’s reputation in the community for being peaceful
and law-abiding, and a stipulation was agreed to that other
character witnesses would also testify as to Appellant’s reputation
for being peaceful and law-abiding.
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PCRA Ct. Op., 12/22/21, at 3-7 (citations and footnote omitted).
On April 2, 2014, a jury found Appellant guilty of rape, rape of a child,
involuntary deviate sexual intercourse (IDSI), unlawful contact with a minor,
endangering the welfare of a child, and corruption of minors.3 On February
17, 2015, the trial court sentenced Appellant to an aggregate term of thirty-
one to sixty-three years of incarceration. N.T., 2/17/15, at 44-45. Appellant
filed post-sentence motions that the trial court denied on May 21, 2015.
Appellant filed a timely appeal. This Court affirmed Appellant’s judgment of
sentence, and our Supreme Court denied Appellant’s petition for allowance of
appeal on September 11, 2017. Commonwealth v. Dukulah, 1955 EDA
2015, 2017 WL 1096461 (Pa. Super. filed Mar. 9, 2017) (unpublished mem.),
appeal denied, 155 EAL 2017, 170 A.3d 1037 (Pa. 2017).
On June 29, 2018, Appellant filed a timely PCRA petition. On May 21,
2019, and October 1, 2019, the PCRA court held hearings concerning
Appellant’s claim that Attorney Michael van der Veen, Appellant’s trial counsel
(trial counsel), was ineffective for failing to call Sonnie as a witness at trial.
The PCRA court subsequently continued the hearing to allow Appellant to
obtain an interpreter for Sonnie, and the PCRA hearing resumed on March 5,
2021.4 On October 5, 2021, the PCRA court issued an order denying
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3 18 Pa.C.S. §§ 3121(a)(1), 3121(c), 3123(a)(1), 6318(a)(1), 4304(a)(1),
and 6301(a)(1)(ii) respectively.
4The PCRA court noted the difficulties involved with securing an interpreter
due to the COVID-19 pandemic and associated closures. PCRA Ct. Op.,
12/22/21, at 1-2.
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Appellant’s PCRA petition. This timely appeal followed. Both the PCRA court
and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues:
1. Did the [PCRA] court err by refusing to grant a new trial on
[Appellant’s] claim that trial counsel was ineffective for failing
to call a witness after counsel told the jury in his opening
speech that he would do so?
2. Did the [PCRA] court err by refusing to grant relief on
[Appellant’s] claim that trial counsel was ineffective for making
factual misstatements to the jury regarding the medical
condition of the victim’s hymen?
3. Did the [PCRA] court err by refusing to grant relief on
[Appellant’s] claim that trial counsel was ineffective for failing
to move for a mistrial when a critical prosecution witness
testified that in the culture of Liberia, “it is very usual for older
men to sexually abuse women”?
Appellant’s Brief at 4.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). “The
PCRA court’s credibility determinations, when supported by the record, are
binding on this Court; however, we apply a de novo standard of review to the
PCRA court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d
1257, 1265 (Pa. 2014) (citation omitted).
Counsel is presumed to be effective. Commonwealth v. Treiber, 121
A.3d 435, 445 (Pa. 2015) (citation omitted). To prove a claim of ineffective
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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.” Sandusky, 203
A.3d at 1043 (some formatting altered). The burden is on the defendant to
prove all three of the following prongs: “(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.” Treiber, 121 A.3d at 445 (citation
omitted). “Failure to satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim.” Commonwealth v. Holt,
175 A.3d 1014, 1018 (Pa. Super. 2017) (citation omitted). Moreover, counsel
will not be deemed ineffective for failing to raise a futile or meritless claim.
See Treiber, 121 A.3d at 445 (citation omitted); see also Commonwealth
v. Treadwell, 911 A.2d 987, 991-92 (Pa. Super. 2006).
Failure to Call Witness
Appellant first contends that trial counsel was ineffective for failing to
call Sonnie as a witness. Appellant’s Brief at 7-8. Appellant notes that trial
counsel told the jury during his opening statement that Sonnie would testify.
See id. at 8. Appellant argues that Sonnie would have refuted K.D.’s claims,
the failure to call Sonnie was unreasonable, and trial counsel’s failure to call
Sonnie as a witness prejudiced Appellant. See id. at 10-19.
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The Commonwealth responds that the PCRA court properly denied relief
on this claim. The Commonwealth argues that Appellant failed to establish
prejudice resulted from trial counsel’s decision to not call Sonnie as a witness.
Commonwealth’s Brief at 10.
When a PCRA petitioner claims counsel was ineffective for failing to call
a witness at trial, the petitioner must plead and prove:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Selenski, 228 A.3d 8, 16 (Pa. Super. 2020) (citation
omitted and formatting altered).
Here, after holding hearings on Appellant’s PCRA petition, the PCRA
court concluded that Appellant was not entitled to PCRA relief because he had
not proven prejudice and failed to establish that trial counsel lacked a
reasonable strategic basis for not calling Sonnie as a witness. See PCRA Ct.
Op., 12/22/21, at 9-10.5 After review, we conclude that Appellant is due no
relief.
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5 Although the PCRA court did not express specific determinations of credibility
with respect to Appellant’s witnesses at the PCRA hearing, Sonnie and
Appellant’s trial counsel, Attorney Michael van der Veen, we note that with
respect to the alleged failure to call Sonnie as a witness at Appellant’s trial,
the PCRA court did state as follows: “This claim is belied by the trial record,
and with consideration to trial counsel, Michael van der Veen’s PCRA
(Footnote Continued Next Page)
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The record reflects that Sonnie appeared at Appellant’s PCRA hearing
with an interpreter, and she testified regarding what she would have said if
trial counsel had called her as a witness at trial. See N.T. 3/5/21, at 16-25,
46-54. The PCRA court found that although some of Sonnie’s proposed
testimony would have contradicted some of K.D.’s claims, it would have
corroborated K.D.’s testimony with respect to the lengthy periods of time that
Appellant had “unfettered access to [K.D.].” PCRA Ct. Op., 12/22/21, at 10.6
Specifically, Sonnie agreed that while she was at work from 3:00 P.M. until
11:00 P.M., Appellant was at the house alone with K.D., and Sonnie conceded
that she did not know what occurred while she was not present. N.T., 3/5/21,
at 44-46. Additionally, Sonnie repeatedly stated “I don’t know about that”
when questioned about the allegations against Appellant, the injuries
sustained by K.D., and her awareness of what transpired when she was not
home. Id. at 37, 38, 40, 43, and 46.
With respect to trial counsel’s testimony at the PCRA hearing, the PCRA
court explained: “[trial counsel] regretted some of his trial strategy, calling
____________________________________________
testimony, along with that of Sonnie Dukulah. No relief is due.” PCRA Ct.
Op., 12/22/21, at 8.
6 The PCRA court further explained: “[Sonnie’s] testimony was difficult and
confusing to understand (perhaps because of the skills of the interpreter, but
confusing nonetheless).” PCRA Ct. Op., 12/22/21, at 9. The PCRA court also
stated: “[w]hile [Sonnie’s] testimony contradicted some of [K.D.’s] testimony
regarding the family interaction and [the] relationship [between Sonnie and
K.D.], [Sonnie’s] testimony was impeachable, particularly regarding such
matters as the involvement of the Department of Human Services.” Id. at 9-
10.
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them mistakes, because in his view an innocent man was convicted.” PCRA
Ct. Op., 12/22/21, at 8. However, the PCRA court also noted that “regret over
losing a case does not amount to ineffectiveness.” Id.; see also
Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa. 2012) (explaining that
merely because a strategy or tactic was unsuccessful does not render trial
counsel ineffective). The PCRA court summarized trial counsel’s testimony
and noted that trial counsel made daily assessments of the prosecution’s case,
and testified that he believed “we were winning every witness at the end of
the day.” PCRA Ct. Op., 12/22/21, at 9 (citing N.T., 10/1/19, at 23-24, 57,
73). Trial counsel believed that Appellant was winning because “it was
absolutely clear to the jury that [K.D.’s] claim that she was beaten hundreds
and hundreds of times with absolutely no mark was absurd.” N.T., 10/1/19,
at 14. While trial counsel did not recall the explanation, he testified that he
had “a myriad of reasons” for not calling Sonnie, and the decision to not call
Sonnie was made “once the defense began.” PCRA Ct. Op., 12/22/21, at 9
(citing N.T. 10/1/19, at 12-13, 72). Trial counsel testified that he believed
the Commonwealth’s case against Appellant was weak, and the PCRA court
concluded that trial counsel did not want to jeopardize an acquittal and risk
“bolstering the case against Appellant with impeachable defense testimony.”
Id. Trial counsel also testified that although he did not remember that he told
the jury in his opening statement that Sonnie would testify, he did not forget
to call Sonnie as a witness. N.T., 10/1/19, at 13, 72-74. Rather, trial counsel
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testified that he had reasons and made the decision not to call Sonnie. Id. at
72-74.
As stated previously, the failure to satisfy any prong of the test for
ineffective assistance of counsel results in rejection of the claim. See Holt,
175 A.3d at 1018. After review, we agree with the PCRA court that Appellant
failed to establish a reasonable probability that if Sonnie testified, the outcome
of Appellant’s trial would have been different. See Treiber, 121 A.3d at 445.
Further, the record supports the PCRA court’s findings that Sonnie’s proposed
testimony was only corroborative of portions of K.D.’s testimony, and that trial
counsel believed that Appellant was winning the trial and did not want to
jeopardize the acquittal with impeachable defense testimony. Accordingly, we
discern no error in the PCRA court’s conclusion that trial counsel had a
reasonable basis for declining to call Sonnie as a witness. See id.
Accordingly, Appellant is not entitled to relief on this claim.
Factual Misstatements
Next, Appellant contends that trial counsel was ineffective because in
his opening statement to the jury, he said that the medical evidence would
not corroborate K.D.’s testimony. Appellant’s Brief at 19. Appellant focuses
on one aspect of trial counsel’s opening where trial counsel asserted that the
medical evidence would refute indications of sexual activity because K.D.’s
“hymen was still intact.” Id. (quoting N.T., 3/26/14, at 89). Appellant
contends that Appellant was prejudiced by this statement. Id. at 20. Further,
Appellant argues that the PCRA court abused its discretion in failing to hold a
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hearing on this issue. See id. at 20. After review, we conclude that Appellant
is due no relief.
It is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not
necessary. To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted).
The PCRA court addressed this issue as follows:
Appellant claims ineffectiveness because trial counsel argued that
medical evidence suggested that the victim was not sexually
assaulted because her hymen was still intact. Trial counsel made
this statement while opening to the jury where he attacked the
credibility of the child victim bolstered by the lack of physical
evidence. The statement was as follows:
The physicians who did a rape kit exam will testify in this
trial. What they will tell you is that the rape kit exam and
the physical exam shows no signs of sexual abuse or sexual
activity. She had no - they examined her vagina and her
anus and her mouth. They found no cuts, no tears, no
scrapes, no scratches, no bruises, no sign on her vagina or
anus of any sexual contact at all. Her hymen was still intact.
At the hospital during the interview, K.D. said that
[Appellant] was within - she claimed that a rape happened
[two days earlier on] Sunday night while [Sonnie] was at
work. And she said that [Appellant], within the week before,
had kicked her in the head so violently, so violently that she
was left unconscious. In the exam there was no evidence
of that at all.
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As a result of trial counsel’s argument, the Commonwealth sought
to elicit expert testimony from Dr. Laura Brennan regarding the
significance or lack thereof of an intact hymen on the issue of
penetration. After a hearing, the expert testimony was allowed.
During the trial, Dr. Brennan, an attending physician at the
Children’s Hospital of Philadelphia, an expert in the field of child
sexual abuse, testified that a child could have a history of sexual
penetration without trauma to the vaginal area or the hymen. On
cross-examination, Dr. Brennan acknowledged that the more
frequent the penetration the likelihood of a “broken hymen”
increased, [but] the extent to which is unknown.
Arguing against the admissibility of the expert’s testimony, trial
counsel stated:
Judge, I didn’t mislead the jury in any way. I had only
indicated what the evidence would be. I spoke to Ms.
Hoyler, who did the actual rape kit exam - physical
examination to the rape test, and she told me that the
hymen was intact. It’s also written on the exhibit that Your
Honor wouldn’t let me blow up, but would be otherwise
admissible in its normal form.
And I didn’t mislead the jury in any way. I only stated the
fact that - the facts. Nor did I draw a conclusion from it. I
stated the fact and I moved on to the other fact. There’s no
- there were no cuts, no bruises, no lesions, no sign of sex
in any way, and her hymen was intact. That’s what I said.
Although trial counsel’s opening led to the introduction of the
Commonwealth’s expert, counsel’s actions had a reasonable basis
and led to the expert’s opinion on cross-examination that the
frequency of penetration increased the likelihood of a broken
hymen. This was helpful testimony to the Appellant, which trial
counsel incorporated into his closing argument to the jury. There
was no prejudice to the Appellant.
PCRA Ct. Op., 12/22/21, at 10-12 (formatting altered).
After review, we agree with the PCRA court that Appellant failed to meet
his burden. The record reflects that trial counsel’s statement was made to
discredit K.D.’s claims of physical and sexual abuse, and trial counsel
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mentioned the medical examination in an effort to illustrate that K.D. went to
the hospital within days of an assault but did not have any injuries from the
alleged attacks. Additionally, on cross-examination, trial counsel elicited
testimony from the Commonwealth’s expert noting that with frequent vaginal
penetration there was an increased likelihood of a broken hymen, and here,
the evidence showed that K.D. did not have a broken hymen. As the PCRA
court concluded, there was a reasonable strategic basis for the statement.
See Holt, 175 A.3d at 1018 (stating “Failure to satisfy any prong of the test
will result in rejection of the appellant’s ineffective assistance of counsel
claim.”). The fact that a tactic was ultimately unsuccessful does not render
trial counsel ineffective. See Busanet, 54 A.3d at 75.
Additionally, we conclude that Appellant failed to establish prejudice.
See Treiber, 121 A.3d at 445. Appellant argued merely: “trial counsel’s
misstatement of fact prejudiced [Appellant] because these events affected the
trial’s outcome. The jury heard expert testimony that harmed the defense’s
case and would not otherwise have been presented.” Appellant’s Brief at 20.
Boilerplate allegations and bald assertions of prejudice cannot satisfy a
petitioner’s burden to prove that counsel was ineffective. See Sandusky,
203 A.3d at 1044. Further, because there were no issues of material fact that
required an evidentiary hearing, we conclude that the PCRA court did not
abuse its discretion when it declined to hold a hearing on this claim and no
relief is due. See Maddrey, 205 A.3d at 328.
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Failure to Request Mistrial
Finally, Appellant contends that trial counsel was ineffective for failing
to move for a mistrial after K.D.’s friend, M.N., testified that it was common
for men to sexually abuse women in Liberia. Appellant’s Brief at 21. Appellant
asserts that a cautionary instruction was insufficient to cure prejudice. Id. at
21-22. Additionally, Appellant claims the PCRA court abused its discretion
when it did not conduct an evidentiary hearing on this issue. Id.
It is well settled that juries are presumed to follow the trial court’s
instructions, and a “trial court’s curative instruction is presumed to be
sufficient to cure any prejudice to Appellant.” Commonwealth v. Thornton,
791 A.2d 1190, 1193 (Pa. Super. 2002) (citations omitted).
Here, the PCRA court addressed Appellant’s claim as follows:
One of the Commonwealth’s disclosure witnesses, M.N., a friend
of the victim, K.D., testified [that] “we were worried for [K.D.] I
mean, if she’s . . . growing up the culture we’re in, it’s very usual
for older men to sexually abuse women.” N.T. 3/31/14 at 90-91.
Trial counsel’s objection was immediate, was sustained, and the
jury [was] instructed to disregard it. Id.There was no prejudice to Appellant. Trial counsel cannot be
deemed ineffective for failure to move for a mistrial when such
extreme relief was unwarranted and would have been futile. Our
law is clear that a motion for mistrial, as well as with all questions
of evidence and evidentiary rulings, is a matter addressed to the
sound discretion of the trial court and must only be granted where
the alleged prejudicial event may reasonably be said to have
deprived Appellant of a fair and impartial trial. [M.N.’s] limited,
unsolicited reference to her culture’s alleged sexually abusive
older men was fleeting, not specifically directed at Appellant, and
the jury was instructed to disregard it after trial counsel’s
objection.
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PCRA Ct. Op., 12/22/21, at 12.
After review, we agree with the PCRA court’s conclusion. As noted by
the PCRA court, the trial court issued a curative instruction immediately after
trial counsel objected to M.N.’s testimony. Because the jury is presumed to
have followed the trial court’s instructions, we agree with the PCRA court that
a mistrial was unwarranted under the circumstances of this case. See
Thornton, 791 A.2d at 1193. Moreover, there was no reasonable probability
that the result of the proceeding would have been different if trial counsel had
moved for a mistrial. See Treiber, 121 A.3d at 445. Here, the PCRA court
was also the trial court judge, and the PCRA court specifically stated in its
opinion that a request for a mistrial would have been futile. PCRA Ct. Op.,
12/22/21, at 12. As stated previously, counsel will not be deemed ineffective
for failing to raise a futile or meritless claim. See Treiber, 121 A.3d at 445;
see also Treadwell, 911 A.2d at 991-92. Finally, because there were no
issues of material fact that required an evidentiary hearing, we conclude that
the PCRA court did not abuse its discretion when it declined to hold a hearing
on this claim and no relief is due. See Maddrey, 205 A.3d at 328.
Conclusion
For these reasons, we conclude that the PCRA court’s determinations
are supported by the record and that there was no error of law by the PCRA
court in denying Appellant’s PCRA petition. See Sandusky, 203 A.3d at 1043;
Treiber, 121 A.3d at 445. Accordingly, we affirm the PCRA court’s order.
Order affirmed.
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J-S31019-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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