J-S09022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT C. ELLIOTT, JR.,

Appellant No. 1111 WDA 2014

Appeal from the PCRA Order June 5, 2014

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0001544-2001

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT C. ELLIOTT, JR.,

Appellant No. 1112 WDA 2014

Appeal from the PCRA Order June 5, 2014

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0001543-2001

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 10, 2015

Robert C. Elliott, Jr., appeals from the order entered June 5, 2014, 

denying his PCRA petition. We affirm. 

Appellant pled guilty at two separate case numbers to a host of sex 

offenses in 2002. The court imposed an aggregate sentence of four and 
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one-half to nine years imprisonment to be followed by five years probation. 

The probationary sentences were imposed at two separate counts of 

indecent assault. Appellant was also determined to be sexually violent 

predator. After serving his maximum sentence of nine years, Appellant was 

released on probation. Appellant subsequently violated the terms of his 

probation. The court conducted a violation of probation hearing on August 

27, 2009. The testimony therein revealed that Appellant was observed by 

his probation officer sitting in a park area watching children play at a large 

water fountain. According to the probation officer, Appellant admitted that 

he was sexually aroused by a young girl that he had fixated on at that park. 

The court revoked Appellant’s probation and resentenced him to consecutive 

sentences of two and one-half to five years incarceration. 

This Court initially vacated the judgment of sentence and the 

Commonwealth appealed. Commonwealth v. Elliott, 4 A.3d 180 

(Pa.Super. 2010), appeal granted, 17 A.3d 331 (Pa. 2011). In 

Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012), our Supreme Court 

reversed the original panel decision and remanded the case to this Court for 

further consideration. The panel then affirmed Appellant’s direct appeal. 

Commonwealth v. Elliott, 63 A.3d 831 (Pa.Super. 2012). Thereafter, 

Appellant timely filed the underlying pro se PCRA petition. The court 

appointed counsel, who filed an amended petition. The PCRA court 

conducted an evidentiary hearing and denied Appellant’s petition, issuing an 
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opinion in support of that denial. Appellant timely appealed. Appellant 

raises three issues for our review.1

1. Does the evidence of record support the determination of the 

PCRA court that probation revocation counsel was not 

ineffective in failing to offer evidence that would have 

contradicted the testimony of a Commonwealth witness—the 

Appellant’s state probation officer—and thus would have 

impeached said witness?

2. Does the record support the determination of the PCRA court 

that probation revocation counsel was not ineffective in failing 

to offer mitigating evidence at the sentencing phase of the 

probation revocation hearing so as to avoid imposition of the 

maximum sentence?

3. Is the lower court’s ruling that probation revocation counsel 

was not ineffective free of legal error?

Appellant’s brief at 4.

In conducting review of a PCRA matter, we consider the record “in the 

light most favorable to the prevailing party at the PCRA level.” 

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). 

Our review is limited to the evidence of record and the factual findings of the 

PCRA court. Id. This Court will afford “great deference to the factual 

findings of the PCRA court and will not disturb those findings unless they 

have no support in the record.” Id. Thus, when a PCRA court’s ruling is 

free of legal error and is supported by record evidence, we will not disturb its 

____________________________________________

1 The PCRA court did not direct Appellant to file and serve a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal.
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decision. Id. Of course, if the issue pertains to a question of law, “our 

standard of review is de novo and our scope of review is plenary.” Id.

Each of Appellant’s issues challenge the effectiveness of his probation 

revocation counsel. We comprehensively discussed the law regarding 

ineffectiveness claims in Commonwealth v. Stewart, 84 A.3d 

701 (Pa.Super. 2013) (en banc). Therein, we opined, “To plead and prove 

ineffective assistance of counsel a petitioner must establish: (1) that the 

underlying issue has arguable merit; (2) counsel's actions lacked an 

objective reasonable basis; and (3) actual prejudice resulted from counsel's 

act or failure to act.” Id. at 706. The failure to meet any of these aspects 

of the ineffectiveness test results in the claim failing. Id. 

Arguable merit exists when the factual statements are accurate and 

“could establish cause for relief.” Id. at 707. Whether the “facts rise to the 

level of arguable merit is a legal determination.” Id. In considering whether 

counsel acted reasonably, we look to “whether no competent counsel would 

have chosen that action or inaction, or, the alternative, not chosen, offered a 

significantly greater potential chance of success.” Id. “Counsel's decisions 

will be considered reasonable if they effectuated his client's interests. We do 

not employ a hindsight analysis in comparing trial counsel's actions with 

other efforts he may have taken.” Id. (citations omitted). Lastly, prejudice 

exists where “there is a reasonable probability that, but for counsel's errors, 

the result of the proceeding would have been different.” Id. This probability 
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is sufficient when it “undermines confidence in the outcome of the 

proceeding.” Id.

Appellant argues that revocation counsel was ineffective in failing to 

impeach his probation officer. Specifically, Appellant’s probation officer 

testified that Appellant was refused parole on four occasions because he had 

failed to successfully complete his sex offender treatment program. 

Specifically, Appellant allegedly failed to develop a relapse prevention plan. 

While Appellant’s parole was denied four times, Appellant submits that he 

did complete the sex offender program offered to him in prison. According 

to Appellant, had counsel impeached the probation officer with certificates of 

completion it would have called into question the credibility of the entirety of 

the officer’s testimony. 

The Commonwealth echoes the PCRA court opinion and replies that 

revocation counsel provided a reasonable basis for his inaction and that 

Appellant cannot establish prejudice. With respect to the reasonable basis 

prong of the ineffectiveness test, revocation counsel testified at the PCRA 

hearing that he sought to avoid whether Appellant completed his treatment 

because the court might consider him incapable of rehabilitation if he had 

undergone treatment and reoffended. Instead, counsel elected to focus on 

the fact that Appellant did not actually come into contact with any children 

and the area he was in was not a prohibited area. Counsel also accurately 

noted that Appellant had not completed sex offender treatment, though he 
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did complete treatment in prison. He pointed out that, at the time of 

Appellant’s violation, he was waiting for his sex offender treatment to begin 

in the nearby courthouse. 

As to prejudice, the Commonwealth highlights that Appellant admitted 

to his probation officer that he was watching a young girl in a bathing suit 

and knew that he was in a forbidden area. The PCRA court found that 

Appellant did not establish actual prejudice because Appellant essentially 

admitted the truth of the allegations made against him by his probation 

officer. 

Instantly, Appellant testified on his own behalf at the revocation 

proceeding. He acknowledged being at the park many times. Appellant 

admitted that, on occasion, there had been kids swimming or running in the 

water at the park. Importantly, Appellant stated that he had told his 

probation officer that he was watching a young girl who was approximately 

five or six years old. However, he denied informing the officer that he was 

sexually aroused by looking at the little girl.

Revocation counsel objected to the Commonwealth’s questions 

regarding whether Appellant’s failure to complete a relapse prevention 

program was the reason he served his maximum sentence. The court 

sustained that objection after Appellant stated that he tried to finish a 

relapse program. Appellant maintained at the PCRA hearing that he did 
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complete such a program and that he was denied parole because he did not 

develop a home plan.

Counsel’s decision not to highlight that Appellant completed some sex 

offender treatment in prison was sound insofar as he was concerned that 

such testimony would reflect poorly on Appellant’s ability to be rehabilitated 

if determined to have violated his probation. Counsel’s strategy to argue 

that Appellant did not violate his probation by coming into contact with any 

minors and was not in a playground, youth recreation center, youth club, 

arcade, amusement park, daycare center, or by a school or boy scout or girl 

scout meeting did effectuate his client’s interests. Indeed, although 

ultimately unsuccessful, revocation counsel’s strategy led to one initial 

successful appeal. 

Moreover, we agree that Appellant cannot establish actual prejudice. 

A minor discrepancy between whether Appellant failed to complete a relapse 

prevention program or a home plan would not result in such devastating 

cross-examination as to completely call into question the probation officer’s 

testimony. Appellant himself corroborated much of the critical information. 

Specifically, he admitted that he was in the park, that he was watching a 

child, and he knew he was not supposed to be in areas where children 

congregated. Accordingly, we find that the PCRA court’s ruling is supported 

by the evidence of record and free of legal error. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2015