J-S03042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MERRICK STEVEN KIRT DOUGLAS

Appellant No. 2131 EDA 2014

Appeal from the PCRA Order June 13, 2014

In the Court of Common Pleas of Carbon County

Criminal Division at No(s): CP-13-CR-0000289-2008

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED APRIL 08, 2015

Merrick Steven Kirt Douglas1appeals the order entered June 13, 2014, 

in the Court of Common Pleas of Carbon County, denying him relief on his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 

9541 et seq. In this timely, first, PCRA2 petition and appeal, Douglas claims 

the PCRA court erred in determining (1) trial counsel was ineffective for 

____________________________________________

1 Douglas’s name appears throughout the certified record with and without a 

slash between Steven and Kirt. His name also appears as “Kirk” rather than 

“Kirt”. When Douglas testified at a hearing on November 18, 2011, his 

name was transcribed as “Merrick Steven Kirt Douglas”, one complete name 

rather than as two names, as suggested by the use of a slash. We will refer 

to him as Douglas.

2

In a prior PCRA petition, Douglas was granted nunc pro tunc relief to file a 

petition for allowance of appeal to the Pennsylvania Supreme Court. 

Accordingly, this petition is considered his first PCRA petition.
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failing to file the requisite notice of intent to present an alibi defense, and 

(2) appellate counsel was ineffective for failing to file an adequate Pa.R.A.P. 

1925(b) statement in his direct appeal. After a thorough review of the 

submissions by the parties, relevant law, and the certified record, we affirm 

on the basis of the sound reasoning of the PCRA court’s June 13, 2014, 

memorandum opinion denying Douglas relief on his PCRA petition, and its 

August 4, 2014, Pa.R.A.P. 1925(a) memorandum opinion that incorporates 

the June 13, 2014 decision, in toto.

Briefly, the charges against Douglas arose from an incident that took 

place on July 10, 2007. After Douglas clocked out of work, he stopped to 

talk to the owner’s 17-year-old daughter.3 Douglas’s time card showed he 

clocked out at 3:37 p.m. After a co-worker left, Douglas picked the 

daughter up, carried her downstairs, molested her and attempted to rape 

her. She escaped when the family dog started barking, leading Douglas to 

believe the victim’s mother had returned home. From work, he went to his 

mother’s place of employment, which was approximately 25 miles, or a 30 

to 40 minute drive, away. 

At trial, Douglas’s mother testified he arrived at her work sometime 

between 4:00 and 4:15 p.m. This testimony effectively supplied an alibi for 

Douglas, given the time he clocked out of work and the uncontradicted time 

____________________________________________

3 The electrical contracting business Douglas worked for was located in the 

owner’s home. To use the time clock, Douglas had to go inside the home.
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it took to drive from his work to his mother’s workplace. However, Douglas 

did not file a notice of alibi defense prior to trial. Accordingly, the mother’s 

testimony regarding what time Douglas arrived was stricken. A jury then 

acquitted Douglas of rape, but convicted him on a variety of other offenses 

including attempted rape, indecent assault by forcible compulsion, and 

unlawful contact with a minor. Douglas received an aggregate sentence of 

six to twelve years’ incarceration.

Douglas raised six issues in his direct appeal. These issues were: (1) 

trial court erred in failing to grant a mistrial after a witness referred to 

Douglas’s offer to take a polygraph test, (2) the Commonwealth violated 

mandatory discovery rules by failing to turn over the initial police report, (3) 

the trial court erred in allowing the Commonwealth to ask leading questions, 

(4) the evidence was insufficient to support the verdict, (5) the verdict was 

against the weight of the evidence, and (6) trial counsel was ineffective. 

The Superior Court addressed the first issue, found issues 2-5 waived, and 

determined issue 6 was premature. See Commonwealth v. Douglas, 30 

A.3d 525 (Pa. Super 2011) (unpublished memorandum).4 Issues 2 and 3 

were waived for failure to include the issues in the Pa.R.A.P. 1925(b) 

statement, issue 4 was waived for failure to develop the argument, and 

issue 5 was waived for failure to preserve the claim in a post-trial motion.

____________________________________________

4 Our Supreme Court denied Douglas’s petition for allowance of appeal. 

Commonwealth v. Douglas, 67 A.3d 793 (Pa. 2013)
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As noted above, in this PCRA petition, Douglas claims his trial counsel 

was ineffective for failing to preserve the possibility of an alibi defense, and 

direct appeal counsel was ineffective for filing a legally insufficient Pa.R.A.P. 

1925(a) statement.5 

Our standard of review of a trial court order granting or denying 

relief under the PCRA requires us to determine whether the 

decision of the PCRA court is supported by the evidence of 

record and is free of legal error. “The PCRA court's findings will 

not be disturbed unless there is no support for the findings in the 

certified record.” 

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (citation 

omitted).

The Honorable Roger N. Nanovic, President Judge, has authored a 

well-reasoned and comprehensive decision addressing Douglas’s claims. In 

supplement of that decision, we write briefly to provide a succinct timeline 

regarding the alibi defense.

Our review of the record demonstrates that prior to trial, trial counsel 

had no reasonable belief in the existence of an alibi defense. In his 

statement to the police, Douglas claimed he left the scene of the crime at 

approximately 4:00 p.m. N.T. Trial, 12/8/2009, at 183. Trial counsel 

testified at the PCRA hearing that Douglas also told him he left at 

____________________________________________

5 Although only two issues were found waived pursuant to Rule 1925(b), 

Douglas has included all waived issues under that argument. The PCRA 

court has addressed all aspects of the claims in its comprehensive 

memorandum opinion.
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approximately 4:00 p.m. N.T. PCRA Hearing, 8/13/2013, at 12. The victim 

testified at trial that the incident was over and Douglas left the house at 

approximately 4:00 p.m. N.T. Trial, 12/8/2009, at 103. Trial counsel 

testified at the PCRA hearing that Douglas’s mother told his private 

investigator that Douglas arrived at her workplace between 4:30 and 4:40 

p.m. not between 4:00 and 4:15 p.m. as she testified at trial.6 N.T. PCRA 

Hearing, 8/13/2013, at 21. The 4:30 to 4:40 p.m. arrival time comports 

with Douglas leaving the crime scene at approximately 4:00 p.m. with a 40-

minute drive time.7 N.T. PCRA Hearing, 8/13/2013, at 12-13. Accordingly, 

trial counsel had no reason to file a notice of alibi. 

In all other aspects, we rely upon the sound reasoning of the PCRA 

court’s memorandum decision of June 13, 2014, as incorporated by the 

PCRA court’s August 4, 2014, memorandum.

Because the PCRA court’s order denying Douglas relief is supported by 

the record and is free of legal error, we affirm the order.

____________________________________________

6 The intent of calling Douglas’s mother to testify on his behalf was for her to 

relate that when Douglas arrived he did not appear disheveled or bruised 

and that he did not act in any way to indicate that anything extraordinary 

had just occurred. After her testimony regarding Douglas’s time of arrival 

was stricken, she provided the intended testimony. 

7 Douglas’s mother testified it was a good “40 minute drive” between 

locations. N.T. Trial, 12/8/2009, at 241. At the PCRA hearing, trial counsel 

testified he determined through Google that it should take between 25-35 

minutes to drive the distance. N.T. PCRA Hearing, 8/13/2013, at 21-22.
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Order affirmed. Parties are directed to attach a copy of the June 13, 

2014, and August 4, 2014, decisions in the event of further proceedings.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015
[FN-3-1'4] 

1 

1 42 Pa.C.S.A. §§ 9541-46. 

Douglas, on May 31, 2013, collaterally attacks his convictions for 

The instant PCRA Petition filed by the Defendant, Merrick 

PROCEDURAL AND FACTUAL BACKGROUND 

assistance. 

and defense counsel, counsel will have rendered effective 

information previously provided- .by the Defendant to both police 

with earlier statements made by the witness and inconsistent with 

alibi defense until the witness testified at trial, at variance 

that where counsel did not learn of facts supporting a possible 

trial an alibi defense. For the reasons which follow, we hold 

counsel was ineffective for not having discovered or presented at 

( PCRA) 1 petition wherein the primary issue raised is whether trial 

Before the court is Defendant's Post-Conviction Relief Act 

Nanovic, P.J. - June 13, 2014 

MEMORANDUM OPINION 

Michael P. Gough, Esquire Counsel for Defendant 

Jean Engler, Esquire Counsel for Commonwealth 

Assistant District Attorney 

MERRICK STEVEN KIRK DOUGLAS, 

Defendant 

v. No. 2 8 9-CR-2008 

COMMONWEALTH OF PENNSYLVANIA, 

CRIMINAL DIVISION 

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA 

! 

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1. 

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2 At trial Soto testified he returned within a minute or so to return the keys. 

(N.T. 12/8/2009, p. 232}. A.D. recalled the time lapse before Soto's return to 

be approximately five to ten minutes. (N.T. 12/8/2009, pp. 69, 129}. 

know when Defendant exited the home. (N.T. 12/8/2009, p. 234). 

t.he home. (N.T. 12/8/2009, pp. 231-32). When asked, Soto did not 

home the second time he was alone and sure Defendant was still in 

I Soto observed the Defendant and A~_D. for only a brief time - they 

I were talking with one another - and then left. When Soto left the 

i. 

work van which he had inadvertently taken with him.2 On his return, 

the home approximately five minutes later to return keys to the 

old daughter, who was by herself in the home. Soto returned to 

Defendant remained, talking to A.O., the owner's seventeen-yearWhile Soto left the home immediately after punching out, 

8/13/2013, p. 25). 

P.M. (N.T. 12/8/2009, p . 54; N.T. 11/18/2011, p. 41; N.T. 

69; 230-31). Defendant's time card documented the time as 3:37 

and Soto went upstairs and punched out. (N.T. 12/8/2009, pp. 68- 

intending to punch out. Upon entering the home, both Defendant 

Nelson Soto, who was likewise finishing work for the day and 

, to punch a time clock. Defendant was accompanied by a co-worker, 

2007, at the end of his shift, Defendant went to the owner's home 

home in Albrightsville, Carbon County, Pennsylvania. On July 10, 

electrical contracting business that the owner operated out of his 

facts of this case occurred in 2007 when Defendant worked for an 

sexually assaulting his boss's seventeen-year-old daughter. The 

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evening, and questioned what had happened, for reasons which are 

Police. Al though the State Pol ice came to A. D. 's home that 

whe r e upon they immediately contacted the Pennsylvania State 

· A.O. told her parents about the assault the next day, 

unable to open the door, he left. 

and locked the door behind her. Defendant followed. When he was 

Defendant's grasp. At this po i n t ,: -A·. D. ran upstairs to her bedroom 

that A. D.' s parents were home, at which time A.O. escaped from 

ended when A.D.'s dog barked, alerting Defendant to the possibility 

A.O. testified she was screaming for him to stop. The assault 

to penetrate her vagina with his penis. During this entire time, 

underwear, penetrated her vagina with his fingers, and attempted 

table with his body, lifted up her dress, pulled down her 

Once in the basement, Defendant pinned A.D. against a pool 

downstairs against her will. 

picked her legs up with the other, and physically carried her 

down to the basement; he then placed one arm around her upper body, 

Defendant commented that they were alone in the home and should go 

testified she pushed Defendant's hand away and asked him to leave. 

appearance, and started to lift up the bottom of her dress. A.O. 

a glass of water. Defendant followed, complimented her on her 

talk. Shortly after this time, A.O. went into the kitchen to get 

Defendant were sitting on a living room couch engaged in small 

According to A.O., when Soto left the second time, she and 

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J 18 Pa.C.S.A. § 312l(a) (1). 

4 18 Pa.C.S.A. § 3126(a) (2), 

5 18 Pa.C.S.A. s 6318(a) (1). 

6 18 Pa.C.S.A, § 3127(a), 

7 18 Pa.c.s.A. § 901 (al. 

e At the PCRA hearing, Trial Counsel testified Defendant told him he left the 

victim's home at 4:00 P.M. (N.T. 8/13/2013, p. 12). This agreed with the 

victim's timeline. {N.T. 12/8/2009, p , 103), Defendant also testified at an 

earlier hearing that after he clocked out he spoke briefly with the victim and 

that he left the victim's home after Mr. Soto. (N.T. 11/18/2011, pp. 41-42). 

9 see Affidavit of Probable Cause attached to the criminal complaint filed on 

March 18, 2008. 

assault occurred between 3:30 P.M. and 4:00 P.M,9 and the 

left the home at 4: 00 P. M. e With the Commonwealth claiming the 

he was at the victim's home on the day of the alleged assault and. 

Defendant's preliminary hearing, Defendant told Trial Counsel that 

pretrial proceedings and at trial. In a meeting shortly after 

Paul Levy, Esq. ("Trial Counsel") represented Defendant in 

by forcible compulsion,7 and various related inchoate offenses. 

unlawful contact with a minor,5 indecent exposure,6 attempt~d rape 

forcible compulsion, 3 indecent assault by forcible compulsion, 4 

completed their investigation, Defendant was charged with rape by 

behind Soto." (N.T. 11/8/2009, pp·.- 182-83). After the pol ice 

that he left the victim's home at approximately 4:00 P.M., "right 

assaulted her. In this statement, Defendant also told the police 

at the home and spoke with A. D., but denied that he sexually 

Defendant gave a written statement wherein he admitted that he was 

During further investigation by the police on July 13, 2007, 

July 11, 2007, was made and/or retained by the police. 

inexplicable, it appears that no written record of this meeting on 

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10 Defendant's mother testified the distance was "a good 40 minutes" drive. 

(N.T. 12/8/2009, p. 241). Attorney Levy recalled the driving time to be 

approximately 25 to 35 minutes based upon a Google search he had performed. 

(N.T. 8/13/2013, pp. 21-22). 

interview, Trial Counsel planned to call Defendant's mother as a 

that indicated he had been involved in an assault. Based on this 

his appearance, his clothing or physical condition, or his demeanor 

investigator that when she saw her son, there was nothing about 

mother's place of employment. Defendant's mother also told the 

home at 4: 00 P. M. and drove directly from that location to his 

Defendant provided to Trial Counsel, that he left the victim's 

from the crime scene,10 her statement reinforced the information 

pp. 20-21) . With her workplace a thirty to forty minute drive 

her workplace between 4:30 P.M. and 4:40 P.M. (N.T. 8/13/2013, 

Pefendant's mother told the investigator that her son arrived at 

Defendant's mother shortly before trial. At this interview, 

occurred. An investigator employed by Trial Counsel interviewed· 

workplace immediately after the __ ~ssault was alleged to have 

that his mother was a potential witness because he drove to her 

To support this position, Defendant advised Trial Counsel 

did not occur. 

position was not that Defendant was not there, but that the assault 

Pennsylvania Rule of Criminal Procedure 567. Instead, the defense 

an alibi defense and did not file a notice of alibi pursuant to 

information provided by Defendant, Trial Counsel did not foresee 

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F"' ,,. 

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testimony stricken. Defendant's mother then testified, as 

filed a notice of alibi. The objection was sustained and the 

The Commonwealth objeGted to this testimony as Defendant had not 

the road at the time the Commonwealth claimed the assault occurred. 

victim's home and his mother's workplace, he would have been on 

shortly thereafter, given the time needed to travel between the 

in that if he arrived at his mother's workplace at 4:00 P.M., or 

p. 241). This testimony established a possible alibi for Defendant 

4:15 P.M., and certainly no later than 4:30 P.M. (N.T. 12/8/2009, 

workplace not between 4: 30 and 4: 40 P. M., but between 4: 00 and 

testified that on the day of the assault her son arrived at her 

different from that which she had told the investigator. She 

as his sole witness. Defendant's mother testified to a time frame 

After the Commonwealth rested, Defendant offered his mother 

twenty-three minutes during which the assault occurred. 

4:00 P.M., Defendant had a window_~! opportunity of approximately 

out at 3:37 P.M. and leaving the victim's home at approximately 

above. As presented by the Commonwealth, with Defendant clocking 

its case. She gave a detailed account of the assault as describe~ 

the Commonwealth relied primarily on the testimony of A.D. to prove 

A two-day jury trial began on December 8, 2009. At trial, 

hour.after the alleged assault occurred. 

witness to testify to Defendant's demeanor and condition within an 

I 

l.. 

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11 Prior to the taking of evidence, we granted the Conunonwealth' s motion in 

limine to allow the Commonwealth to present evidence of Defendant's conviction 

for forgery, a felony of the third degree, if he testified, (N.T. 12/8/2009, 

p. 4). 

was sentenced to an aggregate term of imprisonment in a state 

appeal. With Appellate Coun~el representing Defendant, Defendant 

Defendant at sentencing and for the purpose of taking a direct 

Young, Esquire ( collectively "Appel late Counsel") to represent 

Defendant's parents hired Mark Schaffer, Esquire and Kenneth 

Following his convictions, but prior to sentencing, 

following day of all charges, except rape by forcible compulsion. 

defense rested. Defendant was found guilty by the jury the 

Based on this advice, Defendant decided not to testify and the 

about the assault because Defendant declined her sexual advances. 

Defendant planned on testifying that A.O. fabricated her testimony 

Defendant's testimony credible. According to Trial Counsel, 

advised Defendant that he did not believe the jury would find 

with his prior conviction for forgery. 11 Second, Trial Counsel 

Defendant that if he testified, the Commonwealth would impeach him 

not to testify for two reasons. First, Trial Counsel advised 

should testify. At this meeting, Trial Counsel advised Defendant 

Trial Counsel met with Defendant to discuss whether Defendant 

Defendant did not testify in this case. Prior to resting, 

assault. 

. planned, about her son's demeanor and condition on the day of the 

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evidence claim because he did not properly preserve the issue by 

appeal. Next, it held that Defendant waived the weight of the 

ordered Pa.R.A.P. 1925{b) statement of matters complained of on 

questions because Defendant did not include them in his courtDefendant waived the claims of discovery violations and leading 

claims were deemed either waived or premature. It held that 

merits of the claim related to the polygraph test; the remaining 

judgment of sentence. In doing so, the Court addressed only the 

On May 3, 2011, the Superior Court affirmed Defendant's 

during trial. 

and (6) whether Trial Counsel was ineffective both before and 

{5) whether the verdict was against the weight of the evidence,· 

the evidence was insufficient to sustain Defendant's convictions, 

Defendant had volunteered to take a polygraph test, {4) whether 

for a mistrial after the investigating trooper testified that 

(3) whether the Trial Court erred in denying Defendant's request 

Commonwealth to ask A. D. leading _gu_estions on direct examination, 

discovery, (2) whether the Trial Court erred in allowing the 

failed to provide the defense with requested and mandatory 

Appellate Counsel raised six claims: (1) whether the Commonwealth 

sentence to the Pennsylvania Superior Court. On this appeal, 

On April 9, 2010, Appellate Counsel appealed the judgment of 

years. 

correctional facility of not l~ss than six nor more than twelve 

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S"t 

a subsequent PCRA petition if needed. 

without prejudice, holding Defendan~ could raise those issues in 

same time, we dismissed Defendant's first, second, and third claims 

appeal with the Pennsylvania Supreme Court nunc pro tune. At the 

reinstated Defendant's right to file a petition for allowance of 

seek review of the Superior Court's decision. Consequently, we 

Counsel rendered ineffective assistance of counsel by failing to 

In an opinion dated August 17, 2012, we found Appellate 

2011 decision. 

Court for allowance of appeal from the Superior Court's May 3, 

Appellate Counsel failed to petition the Pennsylvania Supreme 

ineffectively advised Defendant not to testify, and (4) that 

preserve several appellate issues, ( 3) that Trial Counsel 

preserve an alibi defense, (2) that Appellate Counsel failed to 

in this petition: (1) that Trial Counsel failed to raise and 

ineffective assistance of counsel. Defendant raised four claims 

claiming that both Tri~l Counsel and Appellate Counsel rendered 

On August 2, 2011, Defendant filed his first PCRA petition, 

decision. 

it was premature. Defendant did not appeal the Superior Court's 

did not address the claim for ineffectiveness of counsel because 

because he did not properly brief the issue. Finally, the Court 

It also held that he waived the sufficiency of the evidence claim 

making either an oral or post-sentence motion with the trial court. 

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12 Because Defendant filed this petition within a year of the date the Supreme 

Court denied his appeal, we have jurisdiction over his petition. We have no 

jurisdiction over an untimely PCRA petition. Commonwealth v. Frey, 41 A.3d 

605, 610 (Pa. 2012). To be timely, the general rule, with three exceptions, is 

that the petition must be filed within one year from the date the judgment of 

sentence becomes final. 42 Pa.C.S.A. § 9545(b) (1). "[A) judgment becomes final 

at the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, or at 

the expiration of time for seeking the review." § 9545{b) (3), When appellate 

rights are reinstated nune pro tune, a judgment becomes final when appellate 

rights on the reinstated appeal are exhausted. See Commorn-Jealth v. Karanicolas, 

836 A.2d 9401 944-45 (Pa.Super. 2003). Here, we reinstated Defendant's 

appellate rights nune pro tune and he exhausted those rights on May 14, 2013, 

when the Pennsylvania Supreme Court denied his petition for allowance of appeal. 

Defendant then timely filed this petition seventeen days later on May 311 2013. 

13 Defendant also raised the issue that Trial Counsel rendered ineffective 

assistance by failing to object to the admission of photographs. Defendant 

withdrew this issue at the conclusion of the August 13, 20131 hearing. (N.T. 

8/13/2013, p. 71). 

l4 Based on an agreement of the parties, we also incorporated as part of the 

record for this petition the transcript from the hearing held on November 18, 

2011, for Defendant's first PCRA petition. (N.T. 8/13/2013, p. 6). 

DISCUSSION 

of Defendant's claims. We do so in the order advanced. 

Commonwealth and Defendant, we are now ready to address the merits 

hearing, and after receiving briefs on behalf of both the 

present evidence in support of his petition. 14 Following this 

On August 13, 2013, we held ~_hearing to allow Defendant to 

prejudice. 13 

first PCRA petition which we previously dismissed without 

petition, Defendant raises the remaining three issues from his 

filed his Second Amended PCRA petition now before us. 12 In this 

denied this petition. Subsequently, on May 31, 2013, Defendant 

Supreme Court on September 5, 2012. On May 14, 2013, the Court 

Defendant filed his petitio~ for allowance of appeal with the 

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( 1) that the underlying legal claim has arguable merit, (2) that 

into a three-part test under which the defendant must establish: 

Strickland, 466 U.S. at 687. Our Supreme Court divided this test 

that this deficient performance prejudiced the defense. 

defendant must show that counsel's performance was deficient and 

to establish a claim of ineffective assistance of counsel the 

Pierce. In Strickland, the United States Supreme Court held that 

interpretation of Strickland v. Washington, 466 U.S. 668 (1984) in 

assistance, we apply a three-part test based on our Supreme Court's 

Generally, to determine if counsel has rendered ineffective 

four claims was per se ineffective assistance of counsel. 

appeal reinstated. He claims Appellate Counsel's waiver of these 

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), to have his direct 

elements for ineffective assistance of counsel as articulated in 

Defendant argues that he does not need to establish the three 

reinstate his direct appeal nunc pro tune. 

.... _ .. 

Counsel failed to preserve these issues, Defendant asks us to 

issue in either an oral or post-sentence motion. Because Appellate 

statement, not properly briefing an issue, and not preserving an 

appealed from by not including two issues in Defendant's 1925(b) 

appellate review. Appellate Counsel waived four of the six issues 

by failing to preserve on direct appeal all but two issues for 

Defendant first claims that Appellate Counsel was ineffective 

1. WHETHER APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL BY WAIVING SEVERAL APPELLATE ISSUES 

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courts' interpretation of the United States Supreme Court decision 

(Pa. 2005). This presumption of prejudice is founded on our 

prejudice is presumed. Commonwealth v. Halley, 870 A.2d 795, 800 

the defendant to be deprived of his right to a direct appeal - 

counsel results in the waiver of all appellate issues - causing 

As for the final element of prejudice, when the conduct of 

claims.") . 

ensure requested appellate review of a criminal defendant's 

clearly met where counsel fails to follow procedural rules to 

2005) (holding that the first two prongs of the Pierce test "are 

Commonwealth v. Johnson, 889 A.2d 620, 622 n.3 (Pa.Super. 

Pierce test, arguable merit and unreasonableness, are established. 

a failure to follow procedural rules, the first two parts of the 

1273 (Pa. 2007). When counsel waives appellate issues because of 

follow procedural rules. Commonwealth v. Bennett, 930 A.2d 1264, 

counsel fails to perfect a direct appeal because counsel fails to 

1283, 1286 (Pa.Super. 2012). One-~uch circumstance occurs when 

deemed to be per se ineffective. Commonwealth v. Allen, 48 A.3d 

However, in some circumstances, counsel's conduct will be 

Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011). 

will defeat a claim of ineffective assistance of counsel. 

527 A.2d at 975. A failure to establish any of these three elements 

that he was prejudiced by counsel's acts or omissions. Pierce, 

counsel's actions lacked an objective reasonable basis, and ( 3) 

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of the appellate issues are waived, we must determine if the waiver 

prejudice dissipates. Grosella, 902 A.2d at 1293. When only some 

870 A.2d at 801. Thus, in these circumstances, the presumption of 

defendant to have been constructively deprived of counsel. Halley, 

94 (Pa.Super. 2006). When this occurs, our courts do not deem the 

issues presented. Commonwealth v. Grosella, 902 A.2d 1290, 1293- 

appeal because counsel only waived some - but not all - of the 

errors do not entirely deprive a defendant of his right to a direct 

However, this per se rule is not applicable when counsel's 

ineffective assistance of counsel. Halley, 870 A.2d at 800. 

right to a direct appeal, counsel is said to render per se 

waives all appellate issues, entirely depriving a defendant of his 

equivalent of having no counsel at all"). Therefore, when counsel 

appeal or a 1925(b) statement in support thereof is the functional 

repeatedly indicated that the failure to file a requested direct 

Commonwealth v. Bennett, 930 A.2d }2.64, 1273 (Pa. 2007) ("we have 

defendant is constructively denied the assistance of counsel. 

find that when counsel fails to perfect a direct appeal, a 

Commonwealth v. Lantzy, 736 A.2d 564, 571 (Pa. 1999). Our courts 

circumstances in which prejudice is legally presumed." 

of the assistance of counsel falls within a narrow category of 

have relied upon to find that the "actual or constructive denial 

in United States v. Cronic, 466 O~S. 648 (1984), which our courts 

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such a report exists (N.T. 8/13/2013, p. 44-45). Further, . 

is meritless since no evidence was presented to establish that 

documenting their July 11, 2007, visit to A.D.'s home. This claim 

mandatory discovery rules by failing to turn over a police report 

The first claim waived was that the Commonweal th violated 

meritless. 

not exist because the issues Appellate Counsel waived were 

the outcome of the proceeding." Id. Here, such probability does· 

probability is a probability sufficient to undermine confidence in 

2012) {quoting Strickland, 466 O.S. at 694). "A reasonable 

been different.'" Commonwealth v. King, 57 A.3d 607, 613 (Pa. 

unprofessional errors, the result of the proceeding would have 

\there is a reasonable probability that, but for counsel1s 

"To demonstrate prejudice, the [defendant) must show that 

ineffective and we must determine if Defendant was prejudiced._ 

prejudice is not presumed. Consequently, counsel was not per se 

not entirely deprive Defendant of his right to a direct appeal, 

Therefore, because Appellate Counsel's waiver of these issues did 

remaining two were either addressed or deemed premature .. 

Superior Court held that four of those issues were waived. The 

Here, Appellate Counsel raised six issues on appeal. The 

at 1294. 

of appellate issues prejudiced the defendant. Grosella, 902 A.2d 

i. 

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[FN-3-14} 

15 

'f 

that the jury relied on A.D.'s detailed testimony of the assault 

claims, this claim lacks merit. It does not shock our conscience 

was against the weight of the evidence. Like with the other 

Finally, the last waived appellate claim was that the verdict 

Defendant has not shown otherwise. 

elements on all convicted crimes beyond a reasonable doubt. 

meritless because A.D.'s testimony was sufficient to establish all 

insufficient to support the convictions. We find this claim 

The third waived appellate claim was that the evidence was 

relevant only to the rape charge for which Defendant was acquitted. 

whether or not Defendant's penis penetrated A. D. 's vagina was 

error to permit this question, the error was ha rm l e ss in that 

answer in the mouth of the witness"). Further, even if it was 

leading question because a leading question "puts the desired 

(holding that a question that does not suggest an answer is not a 

Commonwealth v. Johnson, 541 A.2d 332, 336-37 (Pa.Super. 1988) 

question is not leading: it does ~ot suggest an answer. See 

(N.T. 12/8/2009, p. 76). This . issue is meritless because the 

The question was "[o]kay. Did his penis penetrate your genitals?" 

Counsel only objected once on the basis of a leading question. 

allowing the Commonwealth to ask leading questions of A.O. Trial 

The second waived appellate claim was that we erred in 

withdrawn. (N.T. 8/13/2013, pp. 68-69). 

counsel acknowledged at the PCRA hearing that this claim was being 

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16 

chance of success.u Stewart, 84 A.3d at 707. When determining 

alternative{) not chosen, offered a significantly greater potential 

would have chosen that action or inaction, or, [whether} the 

reasonable basis, we must determine "whether no competent counsel 

In answering whether counsel's actions lacked an objective 

and whether these actions caused prejudice, which are in dispute. 

namely whether Trial Counsel had a reasonable basis for his actions 

1976). Instead, it is the second and third parts of the test, 

2013); Commonwealth v. Washington, 361 A.2d 670, 674 (Pa.Super. 

merit. See Conunonwealth v. Stewart, 84 A.3d 701°, 712 (Pa.Super. 

present an alibi defense when one exists, are claims of arguable 

an alibi witness, to file notice of an alibi defense, and to 

part of this test, there is no dispute that failing to interview 

v. Spotz, 896 A.2d 1191, 1217-1219 {Pa. 2006). As to the first 

apply the three-part Pierce test discussed above. See Commonwealth 

if counsel was ineffective for failing to pursue a defense, we 

assistance by failing to present_?~ alibi defense. To determine 

Next, Defendant claims Trial Counsel rendered ineffective 

2. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL BY FAILING TO INVESTIGATE AND PRESENT AN ALIBI DEFENSE 

to be without merit, Defendant's first claim of error is denied. 

Because we find the issues Appellate Counsel waived on appeal 

Boyd, 73 A.3d 1269, 1274-75 (Pa.Super. 2013) (en bane). 

to find Defendant guilty on all'convicted crimes. Commonwealth v. 

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17 

15 Defendant- gave a statement to police that is ambiguous on its face as to 

when Defendant left the victim's home. It reads in part as follows: "[o]n July 

10th reported to the office got to the office about 3:37 went inside (A.D.J 

opened the door entered the home with another co worker (sic) went upstairs and 

punched-out came back down and wash my hands because it had glue on it said a 

· few words to (A, D. J then when Nelson left I left right behind him about 4 pm 

received a phone call from the office." Commonwealth Exhibit No. 2. The lack 

of punctuation in this statement makes it unclear whether Defendant left at 

4:00 P.M. or received a phone call at 4:00 P.M. Trial Counsel read the statement 

to be that Defendant left the victim's home at 4:00 P.M. (N.T. 8/13/2013, pp. 

12, 25), This interpretation was supported by his conversations with Defendant. 

(N.T. 8/13/2013, p , 12). 

It was also reinforced by what Defendant's mother told a private investigator 

employed by Trial Counsel. When interviewed shortly before trial by this 

investigator, Defendant's mother told the investigator that her son arrived at 

her workplace sometime between 4:30 P.M. and 4:40 P.M. (N.T. 8/13/2013, p. 21). 

This time fit well with what Defendant had told Trial Counsel about when he 

left the victim's home. 

occurred. 

reason to believe that Defendant was not present when the assault 

claiming the assault was over by 4:00 P.M., Trial Counsel had no 

at 4 : 00 P. M. is With this knowledge, and with the Commonweal th 

Defendant told Trial Counsel that he left the scene of the crime 

This belief was based on his discussions with Defendant in which 

his client had a viable alibi defense. (N.T. 8/13/2013, p. 20). 

Trial Counsel testified that before trial he did not believe 

occurred. Commonwealth v. Carson, 913 A.2d 220, 274 (Pa. 2006). 

performance based on counsel's perspective at the time the conduct 

(Pa. 2008) (citations omitted). We must evaluate counsel's· 

counsel's conduct." Commonwealth v. Sattazahn, 952 A.2d 640, 656 

hindsight," while also avoiding "post hoc rationalization of 

make "all reasonable efforts to avoid the distorting effects of 

whether a reasonable basis for 2ounsel's actions exists, ~e must 

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&7 

[FN-3-14] 

18 

victim, Defendant is the only other person who truly knows when he 

that he would tell his counsel this crucial fact. Excluding the 

occurred at the location claimed, it would be natural and expected 

case where, if the Defendant was not present when the assault 

This rule is particularly relevant under the facts of this 

about abuse). 

mitigating evidence of abuse when defendant never told counsel 

2001} (holding counsel had reasonable basis to not investigate 

history); Commonwealth v. Bracey, 795 A. 2d 935, 944 (Pa. 

theory when defendant never told counsel about his mental health 

evidence of Defendant's mental health to support self-defense 

counsel had reasonable basis not to investigate pre-existing 

Commonwealth v. Brown, 872 A.2d 1139, 1149-50 (Pa. 2005) (holding 

months, never told counsel about the witness's contjition}; 

condition when defendant, as the witness's cell mate for two 

counsel had reasonable basis not to investigate a witness's mental 

Commonweal th v. Miller, 987 A. 2d 638, 654-5 5 (Pa. 2009) ( holding 

which is not suggested by what Defendant tells counsel. See 

evidence, of which he is unaware, has no reason to suspect, and 

unreasonably by not investigating possible defenses, or mitigating· 

Supreme Court has routinely held that counsel does not act 

Counsel did not prepare an alibi defense, was reasonable. Our 

whereabouts and when he left the victim's home, and that Trial 

That Trial Counsel accepted what Defendant told him about his 

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19 

16 This evidence included the following: that notwithstanding the struggle 

described by the victim, neither party had any torn clothing; there was no 

evidence of any property damage in the home; Defendant exhibited no cuts, 

bruises or scratches; and when Defendant's mother observed him within 25 to 40 

minutes after the assault, there was nothing untoward about his appearance or 

demeanor. Similarly, the injuries claimed by the victim were relatively minor, 

some faint scuff marks on her knees and elbows. 

The highly circumscribed time for the assault to occur and the chance return 

of Soto were also to Defendant's advantage. Soto's return to the victim's home 

was unexpected and could not have been anticipated by the Defendant, yet when 

Soto returned he observed the Defendant and the victim engaged in friendly 

conversation, nothing_indicative of a brewing assault. Given these observations 

by Soto, the time for the assault to occur was abridged even further, making it 

arguably more questionable whether everything the victim described after Soto 

left the second time could have occurred within this short time span: continued 

talking between the victim and Defendant inunediately after Soto left; the victim 

struggling and Defendant carrying her to the basement; the attack in the 

basement, removal of the victim's underwear and the attempt at intercourse; and 

the victim's escape and flight upstairs, where the victim testified Defendant 

remained momentarily outside her bedroom door before, after being unsuccessful 

in gaining access to her bedroom, he decided to leave. 

Added to these weaknesses in the Conunonwealth's case were numerous apparent 

deficiencies in the pol ice investigati.on as pointed out by the defense: no 

record kept of the July 11, 2007 response to the victim's home, no attempt to 

examine the victim's or Defendant's clothing for evidence of the assault, no 

attempt to examine the victim's home or the pool table for evidence of the 

assault, including possible pubic hair or semen, and no DNA evidence or other 

forensic tests taken. 

this issue. The alibi evidence which Defendant contends was not 

Nor has Defendant met the third prong of the Pierce test on 

long as the course chosen was reasonable.")). 

not be deemed ineffective for pu rsu i nq a particular strategy as 

Commonwealth v. Laird, 726 A.2d 346, 357 (Pa. 1999) ("Counsel will 

Commonwealth v. Rivers, 786 A.2d 923, 930 (Pa. 2001) (quoting 

time frame, and perceived shoddy police investigation.16 See 

that no assault occurred on the lack of physical evidence, brief 

recall of when he left the victim's home and centering the defense 

him, Trial Counsel acted reasonably in relying on Defendant's 

left the victim's home on July 1a, 2007. Under the facts known to 

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20 

11 Assuming a twenty-five to forty minute drive to his mother's place of 

employment, Defendant could not have been at the victim's home at 3:37 P.M. and 

still arrived at his mother's workplace by 4:00 P.M. 

(N.T. 12/8/2009, pp. 182-183). Such time would further contradict 

police and his counsel that he left the victim1s home at 4:00 P.M. 

time card11 and directly contradict Defendant's own statements to 

4:00 P.M., this would conflict with the time stamped on Defendant's 

Defendant's mother claims he arrived at her place of employment, 

Alternatively, if we accept the earliest time at which 

drive. 

workplace rio later than 4:30 P.M., a twenty-five to forty minute 

estimates, left the home by 4:00 P.M., and arrived at his mother's 

time for Defendant to have assaulted A.D. using the victim's time 

left the second time and 4: 00 P. M.), there is still sufficient 

than twenty-three minutes (i.e., the difference between when Soto 

Accepting the Commonwealth's evidence that the assault lasted less 

than 4: 30 P. M., one of the times given by Defendant's mother. 

the assault and still arrived at h i s mother's workplace by no later 

to present leaves open the possibility that Defendant committed 

First, the variances in the different times Defendant sought 

reasons. 

the outcome of the trial would have been different for several 

assault, and overall did not create a reasonable probability that 

the case, in other respects did not disprove the occurrence of an 

presented was contradictory in some respects to other evidence in 

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21 

The decision of whether or npt to testify on one's own 

behalf is ultimately to be made by the defendant after 

full consultation with counsel. In order to sustain a 

claim that counsel was ineffective for failing to advise 

the appellant of his rights in this regard, the appellant 

must demonstrate either tha~ counsel interfered with his 

right to testify, or that counsel gave specific advice 

so unreasonable as to vitiate a knowing and intelligent 

decision to testify on his own behalf. 

advising him not to testify. 

Finally, Defendant claims Trial Counsel was ineffective for 

3. WHETHER TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF 

COUNSEL BY ADVISING DEFENDANT NOT TO TESTIFY 

assistance of counsel. Accordingly, the claim is denied. 

On this issue, Defendant was not deprived of effective 

defense. (N.T. 8/13/2013, p. 48). 

if given the choice, counsel would have proceeded with an alibi 

beforehand of what Defendant's mother intended to testify to and 

other evidence, it appears unlikely that if counsel had been aware 

was present, but there was no assault. Given the strength of this 

the entire timeline of the defense_Ji.Dd its argument that Defendant 

of employment by 4:00 P.M., would have devastated and undermined 

testimony to the jury, that Defendant arrived at his mother's place 

with him at that time. Id. at 231. To have presented this. 

approximately five minutes later, and that Defendant did not leave 

3:37 P.M., that Defendant was still there when he returned 

that he saw Defendant talking with A.O. as he left that day at 

the testimony of Nelson Soto, Def~ndant's co-worker, who testified 

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22 

rape victim). 

believe his testimony that he had a past relationship with the 

his client not to testify on the basis that the jury would not 

250-51 (Pa. Super. 2004) (holding trial counsel reasonably advised 

testimony credible. See Commonwealth v. O'Bidos, 849 A.2d 243, 

testify when ·counsel believes the jury would not find defendant's 

Additionally, counsel reasonably advises a defendant not to 

Commonwealth v. Thomas, 783 A.2d 328, 335 {Pa.Super. 2001). 

Commonweal th v. Daniels, 999 A. 2d 590, 596 (Pa. Super. 2010) ; 

impeach the defendant with prior crimen falsi convictions. See 

when the defendant's testimony" would allow the Commonweal th to 

Counsel acts reasonably in advising a defendant not to testify 

Second, Trial Counsel's advice not to testify was reasonable. 

testify. (N.T. 11/18/2011, pp. 47-48; N.T. 8/13/2013, pp. 42-44). 

consulting with Trial Counsel, Defendant alone decided not to 

unreasonable advice. First, the e~idence established that, after 

interfered with his right to testify or that Trial Counsel gave 

Defendant has failed to establish that Trial Counsel either 

Commonwealth v. Alderman, 811 A.2d 592, 596 (Pa.Super. 2002}. 

must also demonstrate that his failure to testify caused prejudice. 

with other ineffective assistance of counsel claims, the defendant 

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000)). Like 

Commonwealth v. Michuad, 70 A.3d 862, 869 (Pa.Super. 2013) (quoting 

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23 

7Jattorney." Corrunonwealth v. Harper, 614 A.2d 1180, 1188 (Pa.Super. 

decision not to testify and cannot shift the blame to his 

advice was reasonable, Defendant "must bear the burden of his 

properly factored into his decision not to testify. Because this 

which it was his professional obligation to do and which Defendant 

advised Defendant about the risks of Defendant taking the stand, 

to testify on his own behalf.u Rather, Trial Counsel reasonably 

"so unreasonable as to vitiate a knowing and intelligent decision 

Trial Counsel's advice to Defendant not to testify was not 

declined her sexual advances. Id. at 40-41. 

A.O. fabricated her testimony about the assault because Defendant 

believe the jury would find credible Defendant's testimony that 

believe Defendant's testimony. Id. at 39. Trial Counsel did ·not 

Defendant not to testify because he believed the jury would not 

conviction could have on the jury. Second, Trial Counsel advised 

advising Defendant about the negative impact evidence of a criminal 

occurred several years earlier, Trial Counsel was justified in 

Although this crime was unrelated to the instant offense and 

of his prior conviction for forgery. (N.T. 8/13/2013, pp. 41, 54). 

because if he did the Conunonwealth would impeach him with evidence 

reasons. First, Trial Counsel advised Defendant not to testify 

Trial Counsel advised Defendant not to testify for two 

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13 

( FN-3-14 J 

24 

18 Defendant also failed to establish prejudice. Our Superior Court has held 

that to establish prejudice the defendant must "articulat~ what testimony he 

would have given had he testified at trial" so the court can assess whether 

this testimony creates a reasonable probability of a different result. 

Corruuonwealth v. Alderman, 811 A.2d 592, 596 (Pa.Super. 2002). Defendant has 

not articulated what his testimony would have been at trial, thus, he has failed 

to establish prejudice. 

LO 

•. J 

,-- • ~ ' ! 

P. J. 

BY THE COURT: 

will be denied. 

unreliable. Therefore, Defendant's Second Amended PCRA Petition 

or omission of counsel rendered Defendant's convictions 

U.S. 668, 686 (1984). Against thia standard, we find that no act 

having produced a just result." Strickland v. Washington, 4 66 

of the adversarial process that the trial cannot be relied on as 

be whether counsel's conduct so undermined the proper functioning 

"The benchmark for judging any claim of ineffectiveness must 

CONCLUSION 

merit. is 

1992) . consequently, we find this final claim to also be without 

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[FN-42-13] 

1 

1 On page 4 of the attached Memorandum Opinion we have corrected the date of 

the first meeting of the victim with the police from July 12, 2007 to July 11, 

2007. This was an error in our original Memorandum Opinion, but makes no 

difference in the analysis. 

the Court.1 

copy of this Memorandum Opinion is attached for the convenience of 

reasons for our denial of Defendant's requested PCRA relief. A 

By Memorandum Opinion dated June 13, 2014, we explained the 

ineffective and sought the grant of a new trial. 

Defendant claimed both his trial and appellate counsel were 

for Post-Conviction Relief filed on May 31, 2013. Therein, 

our order of June 13, 2014, denying his Second Amended Petition 

The Defendant, Merrick Steven Kirk Douglas, has appealed from 

Nanovic, P.J. - August 4, 2014 

MEMORANDUM OPINION 

Michael P. Gough, Esquire Counsel for Defendant 

Jean Engler, Esquire Counsel for Commonwealth 

Assistant District Attorney 

MERRICK STEVEN KIRK DOUGLAS, 

Defendant 

v. No. 289-CR-2008 

COMMONWEALTH OF PENNSYLVANIA, 

CRIMINAL DIVISION 

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA 

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Jr 

[FN-42-13] 

2 

l-·-'' .> 

P.J. 

BY THE COURT: 

fulfill our responsibility under Pa.R.A.P. 1925(a). 

For this reason, we refer the Supe.rior Court to that opinion to 

Relief and were addressed in our June 13, 2014 Memorandum Opinion. 

raised in Defendant's Second Amended Petition for Post-Conviction 

The issues raised in this statement are identical to those 

17, 2014, Defendant timely filed the requested concise statement. 

Complained of on Appeal pursuant to Pa.R.A.P. 1925{b}. On July 

we directed Defendant to file a concise statement of the Matters 

. Following Defendant's Notice of Appeal filed on June 27, 2014 ,· 

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