J-S35037-19

* Retired Senior Judge appointed to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

LUIS GONZALEZ,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 2195 EDA 2017

Appeal from the PCRA Order June 19, 2017

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009991-2009

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 24, 2019

Luis Gonzalez (Appellant) appeals from the June 19, 2017 order 

dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. We affirm, and deny Appellant’s motion to 

supplement Exhibit A to his brief. 

We begin with the trial court’s summary of the facts as recounted by 

this Court in Appellant’s direct appeal.

The evidence adduced at trial established that Appellant raped 

his stepdaughter, [Victim], unmercifully in every way possible, 

starting from the tender young age of 8 and continuing until she 

was 16. Over this 8[-]year period, Appellant repeatedly 

penetrated each orifice of [Victim] - anally, orally, and vaginally 

- and also penetrated her with an object. He forced her to 

perform oral sex on him twice per week starting when she was in 

fourth grade and continuing until the age of 16. Appellant raped 

his stepdaughter with such force that he tore/transected her 

hymen - which, it should be noted, occurs in fewer than five 

percent of sexual abuse cases. Further, Appellant perpetrated 

the sexual abuse over an extended period by repeatedly 
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threatening [Victim] that he would kill her mother, sister[,] and 

family members if she were to tell anyone. [Victim] believed 

that Appellant would follow through on his violent threats, 

having previously witnessed him beat, kick[,] and choke her 

mother on more than one occasion. 

In fact, [Victim's] sister,[1] M.G., who was 8 years old at the 

time, caught Appellant raping [Victim], then age 11, on the sofa, 

prompting [M.G.] to yell “stop ... please stop[!]” Appellant 

continued, however, and angrily ordered M.G. to go back 

upstairs, and she complied. Moments later, [Victim] entered the 

upstairs bathroom crying and bleeding from her vagina[. At 

trial, M.G. recounted the incident as follows:]

My room was right next to the bathroom, and I 

heard [Victim] crying in the bathroom. So, I went to 

the bathroom to ask her, like, this [while] crying, 

and she just said I don’t want to talk about it. And 

she was bleeding, and I didn’t know what [that was], 

that moment, I didn’t know, like, why she was 

bleeding. And I was crying, and [Appellant] came up 

to me and said don’t tell nobody, don’t tell your 

mom, don’t tell nobody.... He said I will hurt you and 

your family.

Like [Victim], M.G. was scared to tell anyone about the incident 

due to first-hand observations of Appellant beating her mother in 

violent rages. Indeed, both girls testified to one incident in which 

they heard banging, screaming and yelling from the basement. 

They walked over to the basement steps and looked down to find 

Appellant beating their mother. [As described by Victim:]

... he told us to stay where we are and watch, and 

he, like, was - my mom was on the floor, so he 

would kick her in the ribs, punch her. We seen [sic] 

him, like, grabbing her neck and she was crying, she 

was screaming, but her scream was very light, like, 

already, and she ended up passing out, and we had 

to stay there on the steps watching her.

 

1 Victim and M.G. are technically half-sisters who share the same mother. 

Appellant is M.G.’s father.
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In addition to threatening harm, Appellant routinely explained to 

[Victim] that he “‘had to’” commit these sexual assaults, as 

follows: “He would tell me that it was because I was too close to 

my mom.... And every time I would get close to my mom or I 

would follow her, every time I get close to my mom, he would do 

this. He said this is what you get for not being close with me.” 

Commonwealth v. Gonzalez, 112 A.3d 1232, 1234-35 (Pa. Super. 2015) 

(duplicate numbers and citations to notes of testimony omitted; some 

brackets added and some retained from source). 

Following a jury trial, Appellant was convicted of rape, involuntary 

deviate sexual intercourse (IDSI) with a child, aggravated indecent assault 

of a child under 16, intimidation of a witness or victim, endangering the 

welfare of children, terroristic threats, and unlawful contact with a minor. 

On June 4, 2013, the trial court sentenced Appellant to an aggregate term of 

30 to 60 years in prison. Appellant filed a direct appeal, and this Court 

affirmed his judgement of sentence on March 11, 2015.

2

 See generally id. 

Appellant did not seek further appellate review by our Supreme Court.

Following the conclusion of his direct appeal, on April 17, 2015, 

Appellant filed pro se a document he entitled a motion to modify sentence, 

which, in essence, alleged that he was subjected to an illegal sentence based 

 

2 While his direct appeal was pending, Appellant filed pro se a PCRA petition 

and purported amendments to this petition on November 8, 2014, December 

24, 2014, and February 18, 2015. All of these filings were premature. See 

Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002) (“The 

PCRA provides petitioners with a means of collateral review, but has no 

applicability until the judgment of sentence becomes final. Therefore, [a] 

premature petition does not constitute a first PCRA petition.”). 
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upon Alleyne v. United States, 570 U.S. 99 (2013) (holding that any fact 

that increases a mandatory minimum sentence is an element of an 

aggravated offense, which requires pre-trial notice to defendant, the 

submission of the fact to a factfinder, and the factfinder’s conclusion that the 

fact has been established beyond a reasonable doubt). As the relief he was 

seeking was cognizable under the PCRA, this should have been considered 

his first PCRA petition.3 Commonwealth v. DiMatteo, 177 A.3d 182, 191 

(Pa. 2018). However, it appears that the trial court never ruled upon the 

April 17, 2015 petition, and considered a petition filed pro se by Appellant on 

August 25, 2015, to be his first PCRA petition.4 In the August 25, 2015 

petition, Appellant presented ten claims, all of which alleged his counsel 

rendered ineffective assistance at trial and on appeal. 

 

3 Unlike his earlier attempts to file a petition while his direct appeal was 

pending, he filed the April 17, 2015 petition after his sentence was final (i.e., 

after the expiration of the time for seeking review by our Supreme Court). 

See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at the conclusion 

of direct review ... or at the expiration of time for seeking review.”). 

4 The fact that the April 17, 2015 petition was technically pending when the 

August 25, 2015 petition was filed is of no moment; the PCRA court had 

jurisdiction to consider both simultaneously. See Commonwealth v. 

Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (“PCRA courts are not 

jurisdictionally barred from considering multiple PCRA petitions relating to 

the same judgment of sentence at the same time unless the PCRA court’s 

order regarding a previously filed petition is on appeal and, therefore, not 

yet final.”). 
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The PCRA court appointed counsel and permitted counsel to file an 

amended petition, which counsel filed on September 12, 2016.5 Counsel’s 

amended petition repeated many of Appellant’s prior claims from various 

petitions, ten of which were set forth without detail and three of which 

counsel expanded upon. Over the Commonwealth’s objection, the PCRA 

court granted an evidentiary hearing. The court limited the hearing to three 

issues of trial counsel’s alleged ineffectiveness: (1) not consulting with or 

presenting an expert witness to rebut the Commonwealth’s expert regarding 

sexually-transmitted diseases; (2) not objecting to certain statements in the 

Commonwealth’s closing; and (3) failing to investigate a protection from 

abuse order. N.T., 4/17/2017, at 2-3. The hearing was conducted on April 

17, 2017. Appellant’s trial counsel, Todd Fiore, was the only witness. 

Appellant also made a statement to the PCRA court. On June 19, 2017, the 

PCRA court dismissed Appellant’s petition without elaboration. 

 

5 Prior to the appointment of counsel, Appellant filed pro se what he deemed 

to be an amended petition on December 31, 2015. None of the claims 

Appellant attempted to raise in that filing is at issue on this appeal, so we 

need not consider this filing further. Subsequent to the appointment of 

counsel, on May 22, 2016, and December 2, 2016, Appellant filed pro se two 

additional purportedly amended petitions. Because hybrid representation is 

prohibited in this Commonwealth, the May 22, 2016 and December 2, 2016 

filings were legal nullities. See Commonwealth v. Willis, 29 A.3d 393, 

400 (Pa. Super. 2011). 
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Appellant timely filed pro se a notice of appeal.6 Following the filing of 

a concise statement by Appellant’s PCRA counsel pursuant to Pa.R.A.P. 

1925(b), Appellant requested to proceed pro se. This Court remanded for a 

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 

Following the Grazier hearing, the PCRA court permitted PCRA counsel to 

withdraw and Appellant to proceed pro se. Appellant then filed pro se a new 

concise statement, and the PCRA court issued an opinion pursuant to 

Pa.R.A.P. 1925(a). The case is now ripe for our disposition.

On appeal, Appellant presents nine issues, all of which are related to 

trial counsel’s alleged ineffectiveness.

7

 Appellant’s Brief at 3-4. We are 

guided by the following standard of review in assessing Appellant’s issues, 

some of which we address together for ease of disposition. On review of 

orders denying PCRA relief, our standard is to determine whether the PCRA 

court’s ruling is free of legal error and supported by the record. 

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017) 

(citation omitted). To prevail on a petition for PCRA relief, a petitioner must 

plead and prove, by a preponderance of the evidence, that his conviction or 

sentence resulted from one or more of the circumstances enumerated in 42 

 

6 Unlike other filings, because a notice of appeal protects a constitutional 

right, this Court will accept a notice of appeal filed pro se by an appellant 

represented by counsel. Commonwealth v. Williams, 151 A.3d 621, 624 

(Pa. Super. 2016).

7 Appellant elected to abandon the tenth issue he had set forth in his concise 

statement. Appellant’s Brief at 4.
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Pa.C.S. § 9543(a)(2). These circumstances include ineffectiveness of

counsel, which “so undermined the truth-determining process that no 

reliable adjudication of guilt or innocence could have taken place.” 42 

Pa.C.S. § 9543(a)(2)(ii).

“[C]ounsel is presumed to be effective, and the petitioner bears the 

burden of proving to the contrary.” Commonwealth v. Brown, 196 A.3d 

130, 150 (Pa. 2018). 

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA 

petitioner pleads and proves all of the following: (1) the 

underlying legal claim is of arguable merit; (2) counsel’s 

action or inaction lacked any objectively reasonable basis 

designed to effectuate his client’s interest; and (3) 

prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s error. 

The PCRA court may deny an ineffectiveness claim if the 

petitioner’s evidence fails to meet a single one of these prongs. 

Moreover, a PCRA petitioner bears the burden of demonstrating 

counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) 

(internal citations omitted). 

Issue One: Expert Testimony as to Victim’s Hymen

Appellant’s first issue concerns Attorney Fiore’s alleged ineffectiveness 

in relation to expert testimony at trial. By way of background, the

Commonwealth presented the testimony of Dr. Maria McColgan, the Director 

of the Child Protection Program at St. Christopher’s Hospital for Children. In 

2009, shortly after the allegations of Appellant’s abuse came to light, Dr. 

McColgan and her hospital team interviewed then-16-year-old Victim
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regarding her allegations of abuse and conducted a medical examination of 

Victim. At trial, Attorney Fiore stipulated that Dr. McColgan was a boardcertified child abuse pediatrician who was qualified to testify as an expert in 

the diagnosis and treatment of child sexual abuse. 

Based upon the physical examination and the history obtained from 

Victim, Dr. McColgan diagnosed Victim with “[c]hild sexual abuse.” N.T., 

2/7/2017, at 20. Dr. McColgan testified that during the 2009 medical 

examination of then-16-year-old Victim, an “area” of her hymen was 

“absent,” around the 6 o’clock position, which was an injury Dr. McColgan 

described as a “transection.” Id. at 16. She testified that “all [female] 

infants are born with a hymen, particularly in the posterior position;” in her 

opinion, the transection indicated “trauma [to Victim’s hymen] previously 

that has since healed.” Id. 

Specifically, Dr. McColgan opined that the transection had been caused 

by “some blunt force trauma” by “something that would have torn the 

hymen pretty significantly[.]” Id. at 17. Dr. McColgan testified that one 

way a transection could occur was penetration by an adult male penis or 

some other object with force. Id. at 18. According to Dr. McColgan, a

transected hymen was not common for a 16-year-old child, and “[e]ven in 

children who are sexually abused with reports of penetration, only less than 

about five percent of children with sexual abuse happen to fit into a finding 

such as this.” Id. at 19. Dr. McColgan was not asked to identify the source 
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of this statistic, but confirmed it was consistent with her experience 

examining children at her clinic. Id. She also noted that although a 

physical examination of Victim’s anus did not reveal any tears or fissures, it 

is “extremely rare” to find physical evidence of abuse. Id. at 21. According 

to Dr. McColgan, like the hymen, most anal injuries heal quickly. Id. at 21. 

Dr. McColgan reiterated on cross-examination that 95% of child sexual 

abuse victims do not have definitive physical findings, but in this case, the 

finding of trauma to the hymen was consistent with the history provided by 

Victim. Id. at 29-30. She did acknowledge, however, that although it is 

“less common,” a transected hymen could occur from consensual vaginal 

intercourse or some other cause, like the accidental impaling of an object in 

the vagina. Id. at 32.

On appeal, Appellant posits his first issue as follows: “Was Appellant 

denied a fair trial where Commonwealth expert state [sic] that a scar was 

located at the 6 o’clock position, and no evidence was presented at trial to 

substantiate this and counsel was ineffective[.]” Appellant’s Brief at 3 

(unnecessary capitalization altered); see also Concise Statement, 

3/27/2018, at ¶ 1. As written, the precise nature of Appellant’s issue is 

quite vague, and he risks waiver for failing to identify the issue with 

sufficient precision. See Pa.R.A.P. 1925(b)(4)(ii), 2116(a). 

The argument section of Appellant’s brief sheds some light on the 

issue he is trying to present. Appellant contends, inter alia, that Attorney 
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Fiore rendered ineffective assistance of counsel because he failed to 

challenge the physical evidence discussed by Dr. McColgan8 and her 

corresponding opinion that the transection was caused by sexual abuse and 

not something with which Victim could have been born. Appellant’s Brief at 

10-17. He claims he presented counsel with cases, reports, and data that 

contradicted Dr. McColgan’s opinion, but counsel did not use them and 

pursued a defense of witness fabrication instead. Id. He also claims 

Attorney Fiore should have obtained a defense expert to challenge the 

physical findings. Id. 

The PCRA court contends that Appellant has waived issue number one 

by not raising it before the PCRA court, PCRA Court Opinion, 9/7/2018, at 

10, but after reviewing Appellant’s argument and his petitions, it does 

appear that Appellant preserved at least some portions of his argument.

9

 

Specifically, Appellant preserved the arguments that Attorney Fiore should 

have presented a defense expert, obtained the underlying studies upon 

 

8 Appellant refers to the physical evidence as a scar, but Dr. McColgan never 

testified that Victim had a scar. As noted supra, Dr. McColgan stated that 

Victim had a “transection” of the hymen, which Dr. McColgan described as 

an “area” of her hymen being “absent[.]” Id. at 16. 

9 To preserve a claim for appeal, a PCRA petitioner must set forth the claim 

in a PCRA petition or court-authorized supplement to the petition.

Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013); see also 

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”); Pa.R.Crim.P. 902(B) 

(providing that the “[f]ailure to state such a ground [for relief] in the [PCRA] 

petition shall preclude the defendant from raising that ground in any 

proceeding for post-conviction collateral relief”). 
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which Dr. McColgan’s opinion was based, and challenged Dr. McColgan’s 

testimony by using contradicting studies Appellant provided to Attorney 

Fiore. See PCRA Petition, 8/25/2016, at ¶¶ 2, 7. Nevertheless, these

arguments as presented in Appellant’s brief do not afford him relief. 

Regarding the failure to call an expert witness, our Supreme Court has 

set forth the law as follows.

Where a claim is made of counsel’s ineffectiveness for failing to 

call witnesses, it is the appellant’s burden to show that the 

witness existed and was available; counsel was aware of, or had 

a duty to know of the witness; the witness was willing and able 

to appear; and the proposed testimony was necessary in order 

to avoid prejudice to the appellant. The mere failure to obtain 

an expert rebuttal witness is not ineffectiveness. Appellant must 

demonstrate that an expert witness was available who would 

have offered testimony designed to advance appellant’s cause. 

Trial counsel need not introduce expert testimony on his client’s 

behalf if he is able effectively to cross-examine prosecution 

witnesses and elicit helpful testimony. Additionally, trial counsel 

will not be deemed ineffective for failing to call a medical, 

forensic, or scientific expert merely to [evaluate critically] expert 

testimony that was presented by the prosecution. Thus, the 

question becomes whether or not defense counsel effectively 

cross-examined the Commonwealth’s expert witness. 

Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (brackets, 

citations, and quotation marks omitted).

Appellant’s claim lacks merit. At no point in his PCRA petitions or brief 

does Appellant identify an expert who was available and who would have 

offered testimony designed to advance his cause. Furthermore, Attorney 

Fiore cross-examined Dr. McColgan and elicited testimony that the 
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transection could have been from causes other than sexual abuse. 

Therefore, no relief is due on this portion of Appellant’s argument.

Regarding the studies he allegedly provided to Attorney Fiore, 

Appellant’s brief repeatedly refers to a document he attached to the brief as 

Exhibit A. Exhibit A appears to be a portion of a document discussing ways 

to rebut medical findings of sexual abuse, but it is untitled and undated, and 

does not reference an author or source.10 Not only does the document 

appear to be incomplete, it is completely unclear what the document even is. 

Therefore, even if Appellant provided the document to counsel as he claims, 

it does not support Appellant’s argument that counsel rendered ineffective 

assistance of counsel by failing to use it as part of his trial strategy. 

In his brief, Appellant references studies in the area of sexual abuse by 

“Dr. McCann,” “Doctor Lee [C]oleman,” and “Beth A. Townsend,” but he 

does not provide a full cite or even name of the studies.11 Moreover, 

 

10 Subsequent to filing his brief, Appellant filed a motion requesting that this 

Court permit him to supplement Exhibit A with pages he claims he had 

acquired after he filed his brief. The pages he requests to add still do not 

render the document complete or add clarity to the document, and would 

not change our analysis even if we considered them to be part of Exhibit A to 

his brief. His motion is denied.

11 It appears that Appellant may be referring to studies referenced in 

Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001), a federal case that 

granted habeas corpus relief on which Appellant relies. However, we cannot 

act as counsel for Appellant and make his arguments for him. See

Commonwealth v. Goodmond, 190 A.3d 1197, 1201 (Pa. Super. 2018) 

(“[T]his Court will not act as counsel and will not develop arguments on 

behalf of an appellant.”). Furthermore, Lindstadt is non-precedential in this 

(Footnote Continued Next Page)
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Appellant does not explain the studies in a manner that permits this Court to 

conclude that they contradict Dr. McColgan’s findings. To the extent 

Appellant does explain the content and/or relevance of the studies, we 

conclude that at best they may establish that some abnormalities in a child’s 

hymen are not the result of sexual abuse, such as scars, tags, or thickened 

or rolled edges. However, Appellant fails to establish that the studies 

actually contradict Dr. McColgan’s findings as to Victim’s transected hymen 

in the posterior 6 o’clock position, preventing us from concluding (1) that 

there is merit to his underlying legal claim; (2) that even if he had provided 

the studies to Attorney Fiore it was unreasonable for Attorney Fiore to 

decline to use them; and (3) that the failure to use them prejudiced 

Appellant to the point that the outcome would have been different at trial. 

Therefore, as to issue one, we affirm the denial of his PCRA petition without 

a hearing.

Issue Two: Identification of Appellant 

In his second issue, Appellant argues that Attorney Fiore rendered 

ineffective assistance of counsel by failing to object to hearsay statements 

within the testimony of Dr. McColgan. Specifically, Dr. McColgan testified 

that when Victim described the sexual abuse perpetrated upon her, Victim 

(Footnote Continued) _______________________

jurisdiction, does not involve the PCRA, and is factually distinguishable from 

the instant case. The studies discussed in Lindstadt directly contradicted 

the evidence that had been presented at trial. As we explain infra, that is 

not the case here.
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identified Appellant as the perpetrator. According to Appellant, the 

identification of Appellant was not made for the purposes of medical 

treatment and therefore was inadmissible hearsay pursuant to Pa.R.E. 

803(4). Appellant’s Brief at 19-21. 

“The medical treatment exception provides that testimony repeating 

out-of-court statements made for the purposes of receiving medical 

treatment are admissible as substantive evidence.” Commonwealth v. 

Belknap, 105 A.3d 7, 11 (Pa. Super. 2014) (citation omitted). “The 

following two requirements must be satisfied in order for a statement to 

qualify as a medical treatment exception: (1) the statement must be made 

for the purpose of receiving medical treatment; and (2) the statement must 

be necessary and proper for diagnosis and treatment.” Id. The identity of 

the perpetrator of abuse is seldom pertinent to the medical treatment of 

injuries from the abuse and generally is inadmissible hearsay. 

Commonwealth v. Smith, 681 A.2d 1288, 1292 (Pa. 1996); 

Commonwealth v. D.J.A., 800 A.2d 965, 977 (Pa. Super. 2002) (en banc) 

(extending Smith to sexual abuse cases). 

The PCRA court did not grant an evidentiary hearing on this issue, 

explaining in its Rule 1925(a) opinion that it deemed the claim to be without 

merit because Dr. McColgan testified that the history provided by Victim was 

important to determine which tests were needed for sexually transmitted 

diseases, where to look for healed injuries, and to determine if Victim 
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experienced emotional trauma and needed follow-up counseling. PCRA 

Court Opinion, 9/7/2018, at 14.

While identifying a perpetrator’s physical characteristics or general 

demographic (i.e., a male adult) may be relevant for diagnosis in some 

cases, Commonwealth v. Vining, 744 A.2d 310, 319 (Pa. Super. 1999), 

the Pennsylvania Supreme Court and this Court have rejected the argument 

that a statement identifying the perpetrator of abuse is necessary to 

psychological and emotional treatment and treatment for sexuallytransmitted diseases. Smith, 681 A.2d at 1292 (determining that admission 

of child’s statement identifying perpetrator under the rationale of 

psychological and emotional treatment is too expansive and would swallow 

the rule); D.J.A., 800 A.2d at 976-77 (concluding that child’s statement 

identifying perpetrator cannot, “standing alone, determine whether the child 

should be tested and/or treated for a sexually transmitted disease” and 

therefore is inadmissible hearsay). Based upon this law, we conclude the 

trial court’s analysis of prong one of the ineffective assistance of counsel test 

was in error.

Notwithstanding the merit of Appellant’s claim, Appellant has not 

satisfied the second and third prongs of the test to establish ineffective 

assistance of counsel. Regarding the second prong, “[w]here matters of 

strategy and tactics are concerned, counsel’s assistance is deemed 

constitutionally effective if he chose a particular course that had some 
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reasonable basis designed to effectuate his client’s interests.” 

Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012). “Not every 

choice made by counsel will play out as intended; however, the test is not 

whether the course chosen is successful, but rather whether in making that 

choice there was a logical reason supporting counsel’s action.” 

Commonwealth v. Smith, 995 A.2d 1143, 1159 (Pa. 2010). A chosen 

strategy cannot be deemed 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. Koehler, 36 A.3d 

121, 132 (Pa. 2012). 

Although the evidentiary hearing related to different PCRA claims, 

Attorney Fiore testified regarding his overall trial strategy. According to 

Attorney Fiore, once the trial court ruled prior to trial that the 

Commonwealth would be permitted to introduce evidence of Appellant’s prior 

bad acts of abusing his wife, Attorney Fiore concentrated on devising a 

strategy on how he could turn that negative into a positive for the defense. 

N.T., 4/17/2017, at 20-21, 24, 36. Specifically, his chosen defense strategy 

was to argue that Victim and her sister fabricated their stories to get 

Appellant out of the house to save their mother from his physical abuse 

because she was not taking action to remove Appellant. Id. On appeal, the 

Commonwealth contends that based upon Appellant’s trial strategy, it was 

not unreasonable to fail to object to Dr. McColgan’s testimony because 
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Appellant was not denying that Victim had identified him as the perpetrator. 

Commonwealth’s Brief at 15-16. We agree. 

Additionally, as to the third prong, Appellant has not demonstrated

that he was prejudiced by the hearsay to the extent that had it not come in, 

he would have received a different outcome at trial. Victim testified and 

directly named Appellant as the perpetrator during her testimony, and 

Appellant’s daughter M.G. also testified that she had witnessed Appellant 

raping Victim. Their testimony was properly admitted, and the jury, in its 

province, credited their firsthand accounts of the abuse. Because Dr. 

McColgan’s testimony was “merely cumulative of other, properly admitted 

testimony,” even if counsel had objected and succeeded in having the 

hearsay statement in Dr. McColgan’s testimony excluded, the exclusion 

would have reasonably had little difference on the outcome of Appellant’s 

trial. Commonwealth v. Wallace, 724 A.2d 916, 922 (Pa. 1999). 

Therefore, Appellant has not established the second and third prongs of the 

ineffective-assistance-of-counsel test, and the PCRA court did not err by 

denying Appellant’s petition as to this issue.12

Issues Three and Four: Expert Testimony as to Chlamydia

We address Appellant’s third and fourth issues together as they are 

interrelated, and together are intertwined with the issue of failing to consult 

 

12 We may affirm the PCRA court’s decision on any basis supported by the 

record, even if our rationale is different from that of the PCRA court. 

Commonwealth v. Pou, 201 A.3d 735, 740 (Pa. Super. 2018). 
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with or present an expert on sexually-transmitted diseases, which is an issue 

the PCRA court permitted to proceed to an evidentiary hearing. Appellant’s 

Brief at 3; Concise Statement, 3/27/2018, at ¶¶ 3, 4. Appellant argues that 

Attorney Fiore rendered ineffective assistance of counsel when he failed to 

object to Dr. McColgan’s testimony regarding the transmission of sexuallytransmitted diseases. Appellant’s Brief at 22. According to Appellant, this 

was outside of Dr. McColgan’s stipulated area of expertise. Id. He further 

argues that Attorney Fiore should have called a defense expert at trial 

regarding sexually-transmitted diseases and introduced Center for Disease 

Control (CDC) studies he had provided to Attorney Fiore that contradicted

Dr. McColgan’s testimony. Id. at 22-29.

By way of background, there is no dispute that Victim tested negative 

for chlamydia during her medical examination in 2009 after the abuse came 

to light. At the PCRA hearing, Attorney Fiore testified that Appellant claimed 

he had chlamydia at some point, and Appellant wanted Attorney Fiore to 

establish that Victim’s abuse allegations were false because Victim did not 

have chlamydia. N.T., 4/17/2017, at 4. Attorney Fiore testified that he did 

not recall Appellant’s asking him to find an expert, and he did not consider 

hiring an expert because he was not aware of an expert who could have 

benefited the defense. Id. at 6-7, 9, 13. Appellant stated during the 

hearing that he had told Attorney Fiore about a CDC report he had wanted 
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Attorney Fiore to look into, but Attorney Fiore denied that Appellant ever 

mentioned a CDC report. Id. at 8-9.

Our review of the trial transcript reveals the following. During his 

cross-examination of Victim’s mother at trial, Attorney Fiore got Victim’s 

mother to acknowledge that she had chlamydia around 2002 or 2003. N.T., 

2/6/2013, at 165-66. She believed she received chlamydia from Appellant 

because Appellant had been cheating on her, whereas she did not have any 

other sexual partners besides Appellant at the time. Id. 

After the testimony by the Victim’s mother regarding chlamydia, the 

Commonwealth asked Dr. McColgan to opine on a hypothetical, which was 

whether it was possible for a person with chlamydia to perform a sexual act 

and not transmit chlamydia to the other person. N.T., 2/7/2013, at 27. Dr.

McColgan responded that while it is possible to transmit a sexuallytransmitted disease during a sexual act, it also is possible not to infect the 

other person, depending upon the sexual act. Id. at 27-28. She stated that 

the risk of disease transmission is lowered if ejaculation occurs outside of a 

body cavity. She acknowledged that a sexually-transmitted disease can be 

transmitted “even without ejaculation because sometimes some fluid comes 

out prior to ejaculation[,]” but “the less fluid transferred, the less likely” it is 

for the infection to be transmitted. Id. She also stated that prepubertal 

children are less likely to contract sexually-transmitted diseases, and when it 

does occur, a disease like chlamydia likely will clear up on its own within a 
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couple of years. Id. Spontaneous clear-up can also occur with postpubertal 

children. Id. According to Dr. McColgan, chlamydia is often asymptomatic, 

and may be cleared up by antibiotics commonly used for colds and other 

infections. Id. 

Attorney Fiore neither objected to Dr. McColgan’s testimony nor crossexamined her on this topic. During his closing argument, however, Attorney 

Fiore argued to the jury that 

you heard [Appellant’s] ex-wife testify that she believed that 

[Appellant] had given her [c]hlamydia, and you also heard that 

[Victim] tested negative for [c]hlamydia. I don’t know how that 

matches up. I am not a medical expert, but your common sense 

would tell you one thing would lead to another.

Id. at 91. 

Regarding his allegation that the sexual transmission of disease was 

outside the scope of Dr. McColgan’s expertise, Appellant has not met his 

burden of proving the underlying merit to such a claim. He simply made a 

conclusory assertion without analysis in his brief, and offered no support for 

this argument at the PCRA hearing. Dr. McColgan testified as an expert in 

the diagnosis and treatment of child sexual abuse. It stands to reason that 

such expertise would include the transmission of sexually-transmitted 

diseases between an infected adult to a child, as the presence of an infection 

that is normally transmitted via sex in a child would be an indicator of 

possible sexual abuse. Appellant has not established a basis for us to 

conclude otherwise.
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As with his claim that Attorney Fiore should have presented a defense 

expert at trial as to the transection, his claim regarding the alleged 

ineffectiveness for failing to call an expert on the topic of sexuallytransmitted diseases fails because Appellant has not identified an expert, let 

alone one who would have advanced his cause and been available to testify. 

See Chmiel, 30 A.3d at 1143. 

Finally, Appellant also failed to prove that counsel was ineffective for 

not using the CDC report at trial. The PCRA court found Attorney Fiore’s 

denial that Appellant had ever mentioned such a report to him to be 

credible.13 We are bound by the PCRA’s court credibility determinations that 

are supported by the record. Commonwealth v. Johnson, 966 A.2d 523, 

532 (Pa. 2009). 

Furthermore, the CDC report upon which Appellant is relying appears 

to be page one of a fact sheet about chlamydia from the CDC’s website, 

retrieved on April 8, 2014, after Appellant’s trial. See Appellant’s Brief at 

Exhibit C. Regarding transmission, the fact sheet merely states that one can 

receive a sexually-transmitted disease even if no ejaculation occurs. Id. 

(“Chlamydia is transmitted through sexual contact with the penis, vagina, 

mouth, or anus of an infected partner. Ejaculation does not have to occur 

 

13 Appellant’s own statements about the report are inconsistent. Although 

Appellant repeatedly claims in his brief that he “presented” the CDC report 

to Attorney Fiore before trial, see Appellant’s Brief at 22-23, at the hearing 

Appellant simply stated that he “told him that [he] had a report that [he] 

wanted [Attorney Fiore] to look into.” N.T., 4/17/2017, at 8. 
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for chlamydia to be transmitted or acquired.”). Dr. McColgan’s testimony 

was not in conflict; indeed, she directly acknowledged that it was possible to 

transmit a disease without ejaculation. Therefore, the information on the 

CDC fact sheet was cumulative to her testimony. 

Finally, Appellant did not offer any evidence at the PCRA hearing as to 

when he had chlamydia, and acknowledged he did not “know if it was in 

2002” as his ex-wife had testified. Thus, as it stands, Appellant has only 

proven that he may have had chlamydia around the time Victim says he 

started raping her, but Victim did not have it at age 16, which hardly 

exonerates him or even creates reasonable doubt. 

Based on the foregoing, Appellant has not been successful in pleading 

and proving the underlying merit to his claim. Nor has he been successful in 

pleading and proving prejudice, such that there was a reasonable probability 

of a different outcome had counsel used the CDC report at trial. 

Accordingly, the trial court did not err by dismissing Appellant’s PCRA 

petition as to this issue.

Issue Five: Character Witnesses

In his fifth issue, Appellant argues that Attorney Fiore was ineffective 

by failing to present the testimony of Carlos Rivera and Nilsa Diaz at trial. 

Appellant’s Brief at 30-33. Appellant claims Attorney Fiore never spoke to 

these witnesses. Id. Appellant also claims that Attorney Fiore never told 

him that he was not planning on calling these witnesses. Id.
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Both the PCRA court and the Commonwealth claim that Appellant 

waived his fifth issue by not raising it below. Appellant argues that his fifth 

issue is encompassed by the sixth claim in his August 25, 2015 petition. 

Appellant’s Reply Brief at 2. In that claim, he contended that Attorney Fiore 

rendered ineffective assistance of counsel by not calling available character 

witnesses and by pursuing a different strategy instead, and for convincing 

Appellant to waive his right to present the character witnesses without 

Appellant having a knowing and intelligent understanding of the waiver. 

PCRA Petition, 8/25/2015, at ¶ 6. 

Although the issues relate to the similar underlying acts – i.e., not 

calling witnesses – Appellant frames the issues differently in his brief versus 

his petition. Moreover, to prove that counsel was ineffective for not calling a 

witness, it is Appellant’s burden to establish, inter alia, that the witness 

existed, was available, and is willing to testify. Commonwealth v. 

Michaud, 70 A.3d 862, 867-68 (Pa. Super. 2013). Although Appellant 

attaches an affidavit from Rivera to his brief, that affidavit neither appears in 

the record below nor explains what testimony Rivera could have offered in 

Appellant’s defense at trial. There is no affidavit from Diaz - in the certified 

record or otherwise – and Appellant does not explain what testimony she 

could have offered. Therefore, Appellant has waived this issue by not 
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preserving it before the trial court, and by not developing his claim on 

appeal.14 See Pa.R.A.P. 302(a), 2119(a); Pa.R.Crim.P. 902(B).

Issue Six: Victim’s Feelings Regarding Domestic Violence

Appellant’s sixth claim alleges that Attorney Fiore rendered ineffective 

assistance of counsel by failing to object to the Commonwealth’s question to

Victim about how she felt regarding Appellant’s abuse of her mother. 

Appellant’s Brief at 34-40. Appellant argues that the question sought 

irrelevant information and was prejudicial because it related to a prior bad 

act by Appellant. Id.

Appellant has waived this claim by not raising it before the PCRA court. 

See Elliott, 80 A.3d at 430; Pa.R.A.P. 302(a); Pa.R.Crim.P. 902(B). This is 

the case even if we deemed it to be encompassed by his more general claim 

in his May 22, 2016 PCRA filing that his counsel was ineffective for not 

 

14 Even if this issue were not waived, it has no merit. The record reveals 

that at trial, Attorney Fiore notified the trial court that two defense witnesses 

were present, but he had decided to forgo calling them. Attorney Fiore 

explained that although Appellant did not have violent convictions, which 

would permit counsel to present witnesses who could testify as to 

Appellant’s reputation for peacefulness, counsel decided it would be counterproductive to do so based upon the chosen trial strategy. N.T., 2/7/2013, at 

50-52. As described supra, that trial strategy included arguing that Victim 

and her sister fabricated the story of Appellant’s sexual abuse to get 

Appellant away from their mother, whom Appellant was abusing. During an 

on-the-record colloquy, Appellant stated that he was in agreement with not 

calling the character witnesses as part of his trial strategy. Id. at 52. In 

fact, Appellant testified in a manner that was consistent with the trial 

strategy (i.e., that he had struck his wife in front of Victim and her sister). 

Id. at 57. Accordingly, Appellant’s claim in his brief that he was not aware 

of counsel’s decision not to call the witnesses is belied by his colloquy at 

trial. 
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objecting to the Commonwealth’s introduction of prior bad acts, because the 

May 22, 2016 filing was a legal nullity. See footnote 5, supra. 

Furthermore, even if Appellant’s claim were not waived, it would have 

no merit. This Court already determined on direct appeal that the trial court 

did not abuse its discretion in permitting testimony regarding Appellant’s 

abuse of his wife; such testimony was permissible to explain Victim’s delay 

in reporting Appellant’s sexual abuse. Gonzalez, 112 A.3d at 1238. 

Issue Seven: Replacement of Juror

Appellant claims that when juror number two got sick during trial, 

alternate juror number 13 was skipped impermissibly in favor of alternate 

juror number 14. He further contends that juror number 14 did not 

deliberate and some other unidentified juror deliberated in juror number 14’s 

place. Appellant argues that he was denied a constitutionally fair trial and 

his trial counsel was ineffective for not objecting to this error or requesting a 

mistrial. Appellant’s Brief at 40-43.

We do not reach the merit of this claim. Appellant never raised this 

claim in any PCRA petition, and only raised it for the first time in his Rule 

1925(b) concise statement. Therefore, he has not preserved this claim and 

it is “indisputably waived.” Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 

2014) (holding that claim not raised in PCRA petition cannot be raised for 

first time on appeal) (citation omitted). 
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Issue Eight: Illegal Sentence Pursuant to Alleyne

Appellant’s eighth issue purports to present a challenge to his 

sentence of incarceration based upon Alleyne. Appellant’s Brief at 44-51. 

The PCRA court and the Commonwealth contend Appellant waived his 

Alleyne challenge because he did not raise the issue before the PCRA court, 

but the record indicates otherwise. As discussed supra, Appellant raised 

such a challenge in his motion to modify sentence on April 17, 2015, which 

was a PCRA petition that was never addressed. Furthermore, Alleyne 

“implicates the ‘legality’ of a sentence for issue preservation purposes, and 

thus is not waivable.” Commonwealth v. Barnes, 151 A.3d 121, 122 (Pa. 

2016). One serving an illegal sentence pursuant to Alleyne may obtain 

relief so long as “such relief is sought in a timely[-filed] PCRA petition and 

the judgment of sentence was not final when Alleyne was announced.” 

DiMatteo, 177 A.3d at 191. This is the case for Appellant; he was 

sentenced on June 4, 2013, and his sentence was not final when Alleyne 

was announced on June 17, 2013. Therefore, Appellant “is entitled to 

application of Alleyne, notwithstanding his failure to raise this claim in the 

PCRA court.” Commonwealth v. Sandusky, 203 A.3d 1033, 1103 (Pa. 

Super. 2019). 

Nevertheless, Appellant has failed to convince us that he is entitled to 

relief. Appellant’s argument is woefully undeveloped regarding Alleyne. 

Not only does he neglect to discuss Alleyne and its progeny, he does not 
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even specify whether he received a mandatory-minimum sentence. Instead, 

his analysis focuses solely on the discretionary aspects of his sentence, 

rather than its legality. Only challenges to the legality of a sentence are 

cognizable under the PCRA; challenges that take issue with a judge’s 

sentencing discretion are not cognizable under the PCRA. Commonwealth 

v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). 

Moreover, it is not apparent from the record that he was subjected to 

an illegal mandatory-minimum sentence pursuant to Alleyne. Only two of 

his crimes potentially involve a mandatory-minimum sentence: rape of a 

child15 and IDSI with a child.16 Both of those offenses contain an element 

that the victim must be under the age of 13. 18 Pa.C.S. §§ 3121(c),

3123(b). The mandatory-minimum sentencing statute that was in effect at 

the time the crimes were committed mandated a minimum sentence of five 

years. 42 Pa.C.S. §§ 9718(a)(1), (3) (effective November 30, 2004 to 

December 31, 2006). While there was some discussion at his sentencing 

hearing by counsel regarding the applicability of mandatory minimum 

sentences, see N.T., 6/4/2013, at 16, there was also discussion of the 

 

15 See 18 Pa.C.S. § 3121(c) (“A person commits the offense of rape of a 

child, a felony of the first degree, when the person engages in sexual 

intercourse with a complainant who is less than 13 years of age.”).

16 See 18 Pa.C.S. § 3123(b) (“A person commits involuntary deviate sexual 

intercourse with a child, a felony of the first degree, when the person 

engages in deviate sexual intercourse with a complainant who is less than 13 

years of age.”).
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applicable guidelines, including a potential enhanced maximum sentence due 

to Victim’s age, see id. at 14-16. Appellant was sentenced to 10 to 20 

years of incarceration for each of these crimes, a sentence which exceeded 

the mandatory-minimum sentences, but was within the maximum statutory 

limit. 

It appears that the trial court did not sentence Appellant by using facts 

it determined itself by a preponderance of the evidence to invoke the 

mandatory-minimum statute. Instead, the trial court used its discretion to 

apply the discretionary sentencing guidelines to arrive at a legal sentence 

within a range of sentences.

17

 See Commonwealth v. Zeigler, 112 A.3d 

656, 662 (Pa. Super. 2015) (holding that trial court did not issue an illegal 

sentence when it exceeded the mandatory-minimum sentence, applied the 

sentencing guidelines, and imposed a sentence within the statutory limits). 

Accordingly, we see no indication that Appellant’s sentence offends Alleyne, 

at least regarding his term of incarceration. 

 

17 It is not immediately apparent from the record whether this sentence was 

in the standard or aggravated range of the guidelines. Even if it was in the 

aggravated range, Alleyne only prohibits legislatures from requiring judges 

to apply specific minimum sentences based upon facts the judge 

determines by a preponderance of the evidence. Commonwealth v. 

Washington, 142 A.3d 810, 819 (Pa. 2016). Alleyne does not prohibit 

judges from using their discretion to determine and weigh certain factors in 

fashioning a sentence within a range authorized by law. Alleyne, 570 U.S. 

at 116; Washington, 142 A.3d at 819. 
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Issue Nine: Failure to Petition for Allowance of Appeal

In his final claim, Appellant argues that Attorney Fiore was ineffective 

for failing to petition the Pennsylvania Supreme Court for allowance of 

appeal. Appellant contends that he and family members asked Attorney 

Fiore to appeal to the Supreme Court, but Attorney Fiore abandoned him. 

Appellant’s Brief at 53. Because Appellant raised this claim for the first time 

on appeal, it is waived.18 Reed, 99 A.3d at 494. 

Conclusion

Based on the foregoing, we affirm the PCRA court’s order dismissing 

Appellant’s PCRA petition. Additionally, as discussed in footnote ten, supra, 

we deny Appellant’s motion to supplement Exhibit A to his brief. 

Motion denied. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/19

 

18 Appellant maintains that he preserved this claim by raising it in paragraph 

nine of his August 25, 2015 PCRA petition. Reply Brief at 1. Paragraph 

nine, however, relates to a different issue and does not preserve the 

argument he presents on appeal.