J-S19011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAFAEL SAEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1440 MDA 2022

Appeal from the PCRA Order Entered September 6, 2022

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0005489-2017

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 07, 2023

Appellant, Rafael Saez, appeals from the post-conviction court’s 

September 6, 2022 order denying his timely-filed petition under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues that 

his trial counsel rendered ineffective assistance of counsel for not calling a 

certain witness to the stand at trial. After careful review, we affirm.

The PCRA court provided a detailed summary of the facts underlying 

Appellant’s convictions, the procedural history of his case, and the basis for 

his present claim of trial counsel’s ineffectiveness, as follows:

On June 27, 2018, following a three-day jury trial, [Appellant] was 

convicted of one count of involuntary deviate sexual intercourse 

with a child less than thirteen years of age, two counts of indecent 

assault of a child less than thirteen years of age, one count of 

attempt to commit indecent assault of a child less than thirteen 

years of age, one count of corruption of a minor, one count of 

unlawful contact with a minor, one count of endangering welfare 

of children, and one count of indecent exposure. The events

underlying these convictions arose from [Appellant’s] repeated 
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sexual abuse of his minor stepdaughter when she was between 

the ages of approximately eight and twelve years of [age].

The following facts regarding [Appellant’s] abuse of his 

stepdaughter were established at trial:

In 2013, [Appellant] moved into his girlfriend’s home, where 

she lived with her daughter, J.C., and five sons. J.C. was 

nine years old when she first remembered her “step-dad 

touch[ing her] in a wrong way.” (Trial Testimony [(N.T. 

Trial)], [6/25/18], at 69). At that time her room was on the 

second floor of the house, though two years later[,] she

moved up to an attic bedroom. During trial, she testified 

that the assaults “started in the middle room, and then ...

came to the attic.” (Id. at 71). [Appellant] groped her 

“chest” and “where [she] use[s] the bathroom” in the room 

on the middle floor, in her attic bedroom, in the kitchen 

while she was cooking, and once in the living room. (Id. at 

71, 75, 79). [Appellant] would approach J.C. during times

when her mother was not home, when she was “at work or 

out shopping,” after sending the boys outside or upstairs. 

(Id. at 79). He repeatedly came to her attic bedroom when 

she was alone, took off her underwear, forced her to 

masturbate him, engaged in oral intercourse with her, and 

vaginally raped her. (Id. at 72-80). At age thirteen, J.C. 

found the courage to tell her grandmother, Luz Alvarez, 

about the abuse. Ms. Alvarez reported the abuse to the

police and an investigation began.

(Trial Court Opinion, [3/22/19], at 1-2).

Following the trial and verdict, [the court] sentenced [Appellant]

on October 5, 2018, to an aggregate period of 16 to 32 years[’]

incarceration. [Appellant] thereafter filed a timely direct appeal 

to the Superior Court. The Superior Court affirmed [Appellant’s]

judgment of sentence on December 20, 2019. [See 

Commonwealth v. Saez, 225 A.3d 169 (Pa. Super. 2019).] On 

January 21, 2020, [Appellant] filed a petition for allowance of 

appeal with the Pennsylvania Supreme Court, which was denied 

on May 27, 2020. [See Commonwealth v. Saez, 234 A.3d 407 

(Pa. 2020). Appellant] did not seek review by the United States 

Supreme Court.

On August 18, 2020, [Appellant] filed a pro se [PCRA] petition....

... Attorney Daniel C. Bardo was appointed to represent 

[Appellant]. Attorney Bardo filed an amended [PCRA] petition ...
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on [Appellant]’s behalf on September 24, 2021. In his amended 

petition, [Appellant] argued that his trial counsel, Daniel 

Straszynski, Esquire, was ineffective for failing to call a witness, 

P.M., during trial. On October 12, 2021, [the court] entered an 

order scheduling a hearing on [Appellant’s petition].

At the January 24, 2022[] hearing, Attorney Straszynski testified 

that he learned of a potential witness, P.M., during trial 

preparation when the Assistant District Attorney forwarded police 

reports from interviews that detectives had conducted with P.M. 

and her mother. (Notes of Testimony, Post-Conviction Relief Act 

Hearing [(N.T. Hearing], [12/29/21], at 7-8.... After receiving 

information about P.M., Attorney Straszynski sent his own 

investigator to interview both P.M. and her mother. ([Id.] at 8).

Attorney Straszynski testified that P.M.’s mother made it clear to 

the investigator that she did not want her daughter to be involved 

in the trial and that if Attorney Straszynski did get P.M. involved, 

“it would not be good for [Appellant].” ([Id.]). P.M.’s mother did 

allow the investigator to speak with P.M., who told the investigator 

that she had a conversation with the victim where the victim 

stated that [Appellant] did not do what she had accused him of 

doing—that her accusations were fabricated. ([Id.] at 8-10).

Attorney Straszynski testified that he ultimately made the decision 

not to call P.M. as a witness at trial. ([Id.] at 11). He explained:

Prior to trial, I had made the decision not to call [P.M.] as a 

witness, for essentially, two reasons. One is, essentially, 

her family didn’t want her involved and had indicated at 

least twice to our investigator that if we did call her, that it 

would not be good [for Appellant].

And then, number two, it was relayed to me by [the] 

Assistant District Attorney ... that if I did call [P.M.] as a 

witness, she would call [P.M.’s mother] as a witness to offer 

a prior consistent statement about a conversation that she 

had with the victim where the victim told her that 

[Appellant] had been abusing her since she was 8 years 

old[,] a specific conversation that, I think, happened during 

a car ride, if I remember correctly.

([Id.] at 11-12). Attorney Straszynski stated that although he 

subpoenaed P.M. and she appeared on the first day of trial, he did 

not want “the jury to hear that [the victim] had made another 

disclosure to a family member, and [he] considered that the jury
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would consider [P.M.’s] mother’s testimony about that to be more 

credible than the testimony from [P.M.].” ([Id.] at 13).

Attorney Bardo pushed back against Attorney Straszynski’s 

testimony by referencing a discussion that occurred during an inchambers meeting on the second afternoon of trial, before the 

Commonwealth concluded its case-in-chief but after the victim 

had already testified. During the discussion, Attorney Straszynski 

requested permission to call P.M. for impeachment purposes 

pursuant to [Pa.R.E.] 813(b). Attorney Straszynski acknowledged 

that he had not laid the proper foundation because he had not 

confronted the victim with P.M’s statement while the victim was 

on the stand. ([N.T. Trial], [6/26/18], at 241-42). However, 

Attorney Straszynski sought to call P.M. regardless of his 

“oversight” and “lack of vigilance” during his cross-examination of 

the [v]ictim. ([Id.]). [The court] denied Attorney Straszynski’s 

request. ([Id. at 244]).

During the PCRA hearing, Attorney Straszynski acknowledged that 

he could have fixed his error by recalling the victim during his own 

case-in-chief. (N.T. [Hearing] at 15-16). Attorney Straszynski 

explained that he chose not to take this step and decided not to 

call P.M. for tactical reasons—he thought it was too risky. ([Id.] 

at 17). Attorney Straszynski testified that in addition to the 

Commonwealth’s threat to call P.M.’s mother during its case-inchief, he feared that if he called P.M., she would be hostile and 

that she might bring up something that she had not disclosed to 

his investigators. ([Id.] at 18).

Following the PCRA hearing and after considering briefing 

submitted by both [Appellant] and the Commonwealth, [the court]

ultimately denied [Appellant’s] request for post-conviction relief 

on September 6, 2022. On October 6, 2022, [Appellant] filed a 

notice of appeal to the Superior Court. He filed a [Pa.R.A.P. 

1925(b)] concise statement on October 19, 2022, and the 

Commonwealth responded on October 24, 2022. 

PCRA Court Opinion (PCO), 12/6/22, at 1-5 (footnote and unnecessary 

capitalization omitted). The PCRA court filed its opinion on December 6, 2022.

Herein, Appellant states one issue for our review: “Did the [PCRA] court 

err when it denied relief on [Appellant’s] ineffectiveness claim when the record 
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showed that trial counsel failed to call a known witness who would have 

testified that the victim admitted that she fabricated the allegations against 

[Appellant]?” Appellant’s Brief at 4.

First, “[t]his Court’s standard of review from the grant or denial of postconviction relief is limited to examining whether the lower court’s 

determination is supported by the evidence of record and whether it is free of 

legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997) 

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). 

Where, as here, a petitioner claims that he received ineffective assistance of 

counsel, our Supreme Court has stated that:

[A] PCRA petitioner will be granted relief only when he proves, by 

a preponderance of the evidence, that his conviction or sentence 

resulted from the “[i]neffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place.” Generally, counsel’s 

performance is presumed to be constitutionally adequate, and 

counsel will only be deemed ineffective upon a sufficient showing 

by the petitioner. To obtain relief, a petitioner must demonstrate 

that counsel’s performance was deficient and that the deficiency 

prejudiced the petitioner. A petitioner establishes prejudice when 

he demonstrates “that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” ... [A] properly pled claim of 

ineffectiveness posits that: (1) the underlying legal issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) actual prejudice befell the petitioner 

from counsel’s act or omission. 

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations 

omitted). 
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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) (citations

omitted).

In this case, Appellant argues that Attorney Straszynski was ineffective 

for failing to call P.M. to the stand, as P.M. would have testified that the victim 

admitted she fabricated the allegations against Appellant. Appellant 

challenges the PCRA court’s conclusion that Attorney Straszynski expressed a 

reasonable basis for deciding not to call P.M., and that Appellant failed to 

establish he was prejudiced by counsel’s decision. First, in determining that 

Attorney Straszynski’s decision not to call P.M. was reasonable, the PCRA court 

explained:

“A failure to call a witness is not per se ineffective assistance of 

counsel[,] for such decision usually involves matters of trial 

strategy.” [Commonwealth v.] Sneed, 4[5] A.3d [1096,] 1109

[(Pa. 2012).] Attorney Straszynski’s PCRA hearing testimony 

showed that his ultimate decision not to take the steps necessary 

to call P.M. was tactical. Attorney Straszynski explained that 

although he did fail to lay the evidentiary foundation required to 

introduce P.M.’s testimony, he ultimately decided not to take the 

remedial action necessary to call P.M. because he made a strategic 

decision that the jury would consider P.M.’s mother’s testimony to 

be more credible than the testimony from P.M. 
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PCO at 8 (unnecessary capitalization and some brackets omitted). Second, in 

concluding that Appellant did not demonstrate he was prejudiced by counsel’s 

decision not to call P.M., the PCRA court reasoned:

First, [Appellant] failed to call P.M. as a witness at the PCRA 

hearing, making it almost impossible to discern what her actual 

testimony would have been at trial and whether Attorney 

Straszynski’s decision not to call her prejudiced [Appellant]. 

Compare Commonwealth v. Matias, 63 A.3d 807, 812 (Pa. 

Super. 2013) (upholding the PCRA [c]ourt’s decision that counsel 

was ineffective for failure to call a witness where the witness 

testified at the PCRA hearing and directly contradicted testimony 

offered by [an]other witnesses at trial).

Second, at the PCRA [h]earing, Attorney Straszynski testified that 

P.M.’s mother made it clear that if Attorney Straszynski got P.M, 

involved in the trial, it would not go well for [Appellant]. Attorney 

Straszynski also testified that it was relayed to him by the 

Commonwealth that if he did call P.M. as a witness, the 

Commonwealth would call P.M.’s mother as a witness to offer a 

prior statement about a conversation that she had with the victim. 

In fact, on the morning of June 26, 2018, prior to closing its casein chief, the Commonwealth filed an “Amended Petition to Admit 

Out-of-Court Statements Under the ‘Tender Years Hearsay 

Exception’” in which the Commonwealth sought to introduce the 

statement that the victim allegedly made to P.M.’s mother. The 

Commonwealth outlined the nature of the statement, noting that 

the victim told P.M.’s mother that the abuse started when she was 

eight years old and that the victim was crying at the time she 

made the statement. On the final day of trial, June 27, 2018, [the 

court] noted on the record that [it] had denied the 

Commonwealth’s Petition because [it] had also denied Attorney 

Straszynski’s request to call P.M. under Rule 613(b). ([N.T.] Trial, 

[6/27/18], at 266-67). Thus, if Attorney Straszynski had decided 

to call P.M., the Commonwealth had taken all the procedural steps 

necessary to call P.M.’s mother during its case-in-chief. 

Id. at 8-9.
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We agree with the court’s conclusion that Appellant has failed to 

demonstrate he was prejudiced by the omission of P.M.’s testimony.1 We are 

unconvinced by Appellant’s argument challenging the court’s decision, in 

which he avers:

The victim’s admission to her friend that she fabricated the 

allegations was credible and valuable to the defense. She told her 

friend that “[Appellant] didn’t do what [I] accused him of doing. 

It was fabricated[.]” N.T. [Hearing] ... at 10. The respective 

investigations from both sides confirmed the statement. [Id.] at 

8-10 (the Commonwealth disclosed that the victim made the 

statement and the public defender’s investigator confirmed the 

same). It certainly stands to reason that a victim would confess 

that she fabricated allegations to a friend but not family members, 

the police, or the prosecutor. The admission that the victim 

fabricated the allegations would have bolstered the defense 

argument that the jury should not believe the victim. This would 

have come in addition to the inconsistencies trial counsel had 

already pointed out to the jury. The jury’s verdict is, therefore, in 

question.

The admission of the victim’s confession that she fabricated the 

allegations would not have hurt [Appellant’s] case. As discussed 

above, the prosecutor had already admitted several consistent 

statements. The threat that [a] witness—or more properly the 

witness’s family—would be less-than cooperative is nothing more 

than the reality of trying criminal cases. It is unrealistic to expect 

that the admission of the victim’s inconsistent statement would 

have left [Appellant] worse off under either of these theories.

The outcome is in question. The jury would have heard additional

evidence negatively affecting the victim’s credibility. If the jury 

believed that the victim was lying, the result of the trial would 

likely have been different.

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1 Accordingly, we need not address the court’s determination that counsel also 

expressed a reasonable basis for not calling P.M. to the stand. See Franklin, 

990 A.2d at 797 (“The PCRA court may deny an ineffectiveness claim if the

petitioner’s evidence fails to meet a single one of these prongs.”).
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Appellant’s Brief at 20-21.

Initially, Appellant’s argument is wholly premised on an assumption that 

P.M.’s testimony would have aligned with her out-of-court statements to 

investigators. However, because Appellant failed to call P.M. to the stand at 

the PCRA hearing, this assumption is impossible to verify. As the 

Commonwealth points out, Appellant’s

decision not to call P.M. as a witness at the PCRA hearing is 

particularly noteworthy and telling given [Attorney Straszynski’s] 

testimony that he ultimately decided not to call P.M. as a witness 

at trial because he believed the risks associated with calling her 

outweighed any potential benefit. While trial counsel testified that 

he had no reason to believe P.M.’s testimony concerning that 

conversation would not have been consistent with her prior 

statement, he also noted that P.M.’s mother ... had 

warned/threatened him that calling P.M. to testify would not be 

good for [Appellant] and that he was concerned about the 

possibility of P.M.[’s] disclosing something on the stand that she 

had not disclosed to the investigator. Trial counsel’s stated 

concerns are not unfounded[,] as he acknowledged at the PCRA 

hearing that P.M. and her family were close friends with the victim 

and her family and that the investigator for the defense had only

questioned P.M. about the one specific conversation. As such, 

[Appellant] failed to meet his burden of demonstrating that P.M. 

was willing to testify in favor of the defense[,] and that the 

absence of her testimony was so prejudicial as to have denied

[Appellant] a fair trial.

Commonwealth’s Brief at 11 (footnotes omitted). 

We agree. Without P.M.’s testimony at the PCRA hearing, we cannot 

conclude that she would have testified consistently with her exculpatory, outof-court statements. We also cannot be certain that she would not have added 

other information that could have been harmful to Appellant’s defense. 
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Therefore, Appellant has failed to prove that the absence of P.M.’s testimony 

caused him prejudice.

Alternatively, we agree with the Commonwealth that Appellant also 

failed to prove prejudice for several additional reasons. The Commonwealth 

explains:

Offering the testimony of P.M. would have opened the door to 

other highly prejudicial evidence. In addition to inviting the prior 

out-of-court statements [the victim made to P.M.’s mother], ... 

P.M.’s testimony would have arguably opened the door to 

reconsideration of the order precluding evidence of [Appellant’s]

2001 adjudication for rape and incest involving his then twelveyear-old sister, whom he impregnated. The Commonwealth had 

previously sought to introduce this evidence through the 

testimony of [Appellant’s] sister pursuant to [Pa.R.E.] 404(b)(2), 

arguing that [Appellant’s] prior rape of his sister was strikingly 

similar to the current offenses, highly probative[,] and 

demonstrated a common plan, scheme or design. While the 

Commonwealth was ultimately precluded from doing so, based 

solely on the relative remoteness of the prior offenses, it was 

specifically noted during the proceedings that a Rule 404(b) 

analysis includes consideration of the Commonwealth’s need for 

the evidence, including to rebut attacks on credibility and claims 

of fabrication. See[] Commonwealth v. Luktisch, ... 680 A.2d 

877[, 879] (Pa. Super. 1996) (holding that the Commonwealth’s 

need to present prior bad acts testimony increased after victim’s 

credibility was “crippled” at trial). In fact, the defense 

acknowledged the possibility that the evidence may be

appropriate rebuttal evidence[,] and the [c]ourt included a 

qualification in its order precluding the evidence, noting that it was 

not precluding “the possible use of such evidence in rebuttal if 

deemed to be relevant.” [Order, 4/25/18, at 1 (single page).]

Offering the testimony of P.M. would have warranted reopening 

the issue, as was specifically anticipated, and likely would have 

tipped the scale in favor of admitting the evidence to rebut the

direct attack on the victim’s credibility and charge of fabrication. 

Because P.M.’s testimony could have opened the door to this 
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other[,2] highly prejudicial evidence, [Appellant] did not suffer any 

actual prejudice as a result of trial counsel’s decision to not call 

P.M. to testify.

Furthermore, given this record, P.M.’s testimony would have been 

unlikely to change the jury’s credibility determinations or the 

outcome of the proceedings. The jury was presented with 

voluminous testimony and evidence that the victim had made 

prior inconsistent statements. In fact, it was specifically noted 

that during her forensic interviews the victim unequivocally denied 

having touched [Appellant’s] penis[,] despite testifying to doing 

so at trial. The jury also observed the victim during her first 

forensic interview outright deny several of the allegations against 

[Appellant], including [Appellant’s] having touched her with

anything but his hands[,] and [Appellant’s] having touched her 

under her clothes or on the inside of her vagina. During both ...

the forensic interviews, the jury observed the victim[’s] claiming 

to not know or [be able to] recall details and events that she 

reported to others and/or testified to at trial. Despite being 

presented with these inconsistent statements and prior outright 

denials, the jury found the victim credible and returned a verdict 

of guilt.

The record also contains overwhelming testimony and evidence 

concerning the victim’s reluctance, and at times outright refusal, 

to disclose the sexual abuse to others. The victim repeatedly 

expressed feeling ashamed, scared[,] and a desire to not have 

people know that she was sexually abuse[d]. She testified that 

she never told any of her friends about the abuse and still had not 

disclosed the extent of it to even her mother. Throughout the 

forensic interviews[,] she can be observed avoiding talking about 

the abuse by denying the abuse occurred, claiming to not know or 

recall things and, at times, simply refusing to respond. Consistent 

with the arguments of the defense at trial, the only disclosures 

the victim ever made, notably with the exception of [P.M.’s 

mother], were to adults that pressured her into disclosing. P.M.’s 

statement that on one occasion the victim had denied that the 

abuse occurred is entirely consistent with and cumulative of other 

testimony and evidence offered at trial and merely demonstrates 

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2 Here, the Commonwealth notes that “the [c]ourt permitted the 

Commonwealth to introduce, for purposes of showing a common plan or 

scheme, evidence that [Appellant] sexually abused his six-year-old biological 

daughter.” Commonwealth’s Brief at 18 n.38 (citations to the record omitted).
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a young child feeling ashamed, scared[,] and reluctant to have 

others, particularly friends/peers, know that she was sexually 

abused by a trusted adult father figure. Given the circumstances

in this particular case, it is unlikely that P.M.’s testimony would 

have changed the outcome of the proceedings.

Id. at 16-20 (footnotes omitted).

After thoroughly reviewing the record in this case, we agree with the 

Commonwealth’s arguments that Appellant was not prejudiced by the 

omission of P.M.’s testimony and, indeed, her testimony could have potentially

harmed his defense by opening the door to other, damaging evidence. Thus, 

the PCRA court did not err in concluding that Appellant failed to prove he was

prejudiced by Attorney Straszynski’s decision not to call P.M. at trial. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/07/2023