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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

CHAD EARL FRANTZ

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1572 MDA 2021 Appeal from the PCRA Order Entered November 15, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP

- 36

- CR

- 0002297

- 2015

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E. * MEMORANDUM BY STEVENS, P.J.E.: FILED: N OVEMBER 15, 2022 Appellant Chad Earl Frantz files this appeal from the order of the Court of Common Pleas of Lancaster County denying his petition pursuant to the
Post

- Conviction Relief Act (PCRA). 1 A ppellant claims his trial counsel was
in effective in pursuing a line of questioning of the victim on cross

- examination. After careful review, we affirm. On December 2, 2015, a jury convicted Appellant of R ape of a C hild, Involuntary Deviate Sexual Intercourse with a Child ( IDSI ) , Aggravated Indecent Assault of a C hild , Indecent Assault of a Child , U nlawful R estraint, C orruption of M inors and U nlawful C ontact with a M inor in connection with claims that Appellant sexually abused his minor stepdaughter over a six

- year period when the victim was between the ages of four and ten.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541

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After reviewing a pre

- sentence investigation , on March 9, 2016, the trial court held a hearing at which it determined that Appellant was a sexually violent predator and sentenced him to an aggregate term of 301⁄2 to 61 years’ imprisonment. On appeal, on April 24, 2017, this Court reversed Appellant’s conviction for indecent assault , affirmed the judgment of sentence in all other respects , and determined resentencing was not necessary. Commonwealth v. Frantz , 702 MDA 2016, 2017 WL 1437530, at *1 (Pa.Super. Apr. 24, 2017) (unpublished memorandum). On August 23, 2017, Appellant filed a timely pro se PCRA petition . The PCRA court appointed Appellant counsel who subsequently sought to withdraw his representation an d filed a no

- merit brief

. On March 27, 2018, the PCRA court dismissed the petition. On July 19, 2019, this Court vacated the order dismissing the petition and remanded for the appointment of counsel to file a new petition as Appellant had been denied the r ight of earnest review of his PCRA claims with the assistance of counsel

. Commonwealth v. Frantz , 703 MDA 2018, 2019 WL 3229750, at *4 (Pa.Super. July 17, 2019) (unpublished memorandum). Upon remand, the PCRA court appointed new counsel, who filed a n amended PCRA petition on November 1, 2019. After Appellant filed a pro se petition on November 18, 2019, counsel filed a second amended petition on October 2, 2020.J

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Appellant ’s petition alleged t hat trial counsel was ineffective in asking the victim a series of questions on cross

- examination about whether she had reported certain details about the abuse to the investigating detective. When the victim indicated that she had not told the officer so me of the details that she shared at trial, the prosecution was permitted to play a recording of the victim’s prior forensic interview with caseworkers where she had made a prior
consistent statement

. On July 20, 2021, the PCRA court held an evidentiary hearing at which Appellant presented trial counsel as a witness . On November 12, 2021, the PCRA court dismissed Appellant’s petition. This timely appeal followed. Appellant presents the following issues for review on appeal:
I. Trial counsel testi fied that his reasonable strategic basis for opening the door to the victim’s prior consistent statement was an attempt to discredit her. He incorrectly accused her of recently fabricating details of two incidents during cross

examination. Did the PCRA cou rt err when it held that trial counsel had a reasonable b asis for his questions? II. The PCRA court found that the prosecutor’s admission of a prior consistent statement

– specifically, a recording of the victim’s forensic interview

– was not prejudicial. It reached that conclusion on two bases: The recording was cumulative of ( i.e. , consistent with) other evidence, and other evidence, although created by the victim, supported [Appellant’s] guilt. Did the PC RA court err when it held that the admission of the recorded interview was not prejudicial? Appellant’s Brief, at 4. In reviewing the denial of a PCRA petition, our standard of review is well

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[o]ur review of the grant or denial of PCRA relief is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Commonwealth v. Cox , 636 Pa. 603, 146 A.3d 221, 226 n .9 (2016). 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. Burton , 638 Pa. 687, 158 A.3d 618, 627 n. 13 (2017)

. Commonwealth v. Small , 647 Pa. 423, 440

– 41, 189 A.3d 961, 971 (2018). Appellant ’s petition raises claims of trial counsel’s ineffectiveness. Our review of an ineffectiveness claim is guided by the following principles:

[a]s originally established by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), and adopted by Pennsylvania appellate courts, counsel is presumed to have provided effective representation u nless a 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, t o the effect that there was a reasonable probability of a different outcome at trial if not for counsel's error. Commonwealth v. Wantz , 84 A.3d 324, 331 (Pa.Super. 2014) (citations omitted). “A failure to satisfy any prong of the ineffectiveness test requi res rejection of the claim of ineffectiveness.” Commonwealth v. Daniels , 600 Pa. 1, 963 A.2d 409, 419 (2009). Commonwealth v. Selenski , 228 A.3d 8, 15 (Pa.Super. 2020). With respect to the reasonable basis prong, “ [g]enerally, where matters

o f strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests.”J

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Commonwealth v. Koehler , 614 Pa. 159, 36 A.3d 121, 132 (2012) (quotations and citation omitted). “In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable, but whether there was a reasonable basis for the

course of action actually selected. ” Com monwealth v. Charleston , 94 A.3d 1012, 1027 ( Pa.Super. 2014) (citation omitted). To show counsel’s strategy lacked a reasonable basis, Appellant must prove that the strategy employed by trial counsel “was so unreasonable that n o competen t lawyer would have chosen that course of conduct. ” Com monwealth v. Rega , 593 Pa. 659, 696, 933 A.2d 997, 1018

– 19 (2007) (citation omitted). Further, to satisfy the prejudice prong, “ 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 proceedin g. ” Selenski , 228 A.3d at 16 (quoting Commonwealth v. Spotz , 624 Pa. 4, 84 A.3d 294, 311

- 12 (2014) (citations, quotation marks, and quotations omitted)). As noted above, Appellant asserts that trial counsel had no reasonable basis to suggest on cross - exam ination that the minor victim was making up details about her sexual abuse during her trial testimony. Appellant claims that trial counsel’s questioning opened the door for the prosecution to rehabilitate the victim’s credibility pursuant to Pa.R.E . 613(c) with the admission of prior consistent statement s .J

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It is well established that: Evidence of a witness's prior consistent statement is admissible to rehabilitate the witness when the statement is offered to rebut a charge of recent fabrication, bi as, or improper motive. Commonwealth v. Counterman , 553 Pa. 370, 719 A.2d 284, 301 (1998); Pa.R.E. 613(c).

... “[A] prior consistent statement is always received for rehabilitation purposes only and not as substantive evidence.” Commonwealth v. Baumhammers , 599 Pa. 1, 960 A.2d 59, 89 (2008) (citing Pa.R.E. 613 cmt). Com monwealth v. Busanet , 618 Pa. 1, 53, 54 A.3d 35, 66

– 67 (2012)

. In this case, Appellant points to two portions of the victim’s trial testimony. In the first instance, the victim testified that Appellant had dumped a bottle of water on her on one of the occasions in which he sexually abused her. Notes of Testimony (N.T.), Trial, 11/3 0/15 , at 163

. In the second instance, the victim recalled that Appellant conco cted a “game” in which he blindfolded her, placed objects in her hand, and asked her to guess what the objects were. N.T., 11/30/15, at 164. With respect to both incidents, tria l counsel was able to get the victim to admit on cross - examination that she had not shared some of these specific details wit h investigat ors . The victim explained that she had not remembered the details when speaking with the detective. N.T., 11/30/15, at 164. In response to defense counsel’s allegation that the victim failed to report these specific details to the police , the trial court permitted the Commonwealth to play a recording of the victim’s forensic interview at the Lancaster County Children’s Alliance in which the victim gave prior consistent
statement s reporting these specific allegations of abuse to caseworkers

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At the hearing, trial counsel indicated that his strategy was to discredit the minor victim by showing that her testimony should not be believed as she

wa s suggestible to the coaching of her mother who was in the midst of separating from Appellant

. Notes of Testimony (N.T.), PCRA hearing, 7/20/21,
at 9

- 10 , 26. Trial counsel claimed the def ense had no possibility of winning the case without attacking the victim’s credibility. N.T

. , 7/20/21, at 43

- 44. Trial counsel indicated that he noticed that the victim was embellishing her testimony on the witness stand with details she had not told inves tigators. Trial counsel was able to successfully impeach the victim’s credibility in compelling her to agree that she was testifying to allegations she had not shared with the police

. This a dmission by the victim allowed trial counsel to suggest that the victim was fabricating her testimony and that the abuse had in fact, never occurred. As such, trial counsel had a reasonable basis for asking these questions that was designed to effectuate the interest of the def ense. We also agree with the PCRA court’s assessment that Appellant did not show the admission of the forensic interview was so prejudicial that it result ed in a different outcome in this case

. After trial counsel effectively impeached the victim’s cre dibili ty, trial counsel did open the door to the admission of the forensic interview ; however, the r ecording did not reveal any new information to the jury, but simply offered cumulative evidence already in the record. The trial court also took precautio nary measures to ensure the jury knew of t he limited purpose for which the forensic interview was offered. Before the recording of the interview was played for the jury , the trial courtJ

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specifically instructed the jury that the recording was being offered solely for the purpose of assessing the credibility of the victim, and not as substantive evidence of Appellant’s guilt. N.T., 12/1/15, at 364

- 66. Moreover, the prosecution presented other evidence to corroborate the victim’s testimony such as her prio r disclosures of the abuse to her family members and friends , including her mother, sister, and friend. In addition, the prosecution pointed to the victim’s writin gs referring to the abuse as well as the circumstantial evidence which supported Appellant’s opportunity to commit the abuse. Based on the foregoing reasons, we conclude that the PCRA court correctly found trial counsel was not ineffective i n seeking i mpe ach the victim’s credibilit y by highlighting that she was testifying to particular allegations that she had not presented to investigators. Accordingly, we affirm the PCRA court’s decision to deny Appellant’s petition. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11 / 15 /2022