J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAFAEL SAEZ

Appellant :

:

:

:

:

:

:

:

: 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 SEPTEM BER 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 rende red 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 ] repeatedJ

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sexual abuse of his minor stepdaughter when she was between the ages of approximately eight and twe lve 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 “ s tep

- 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, ” af

ter 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 p etition for a llowance of

a ppeal with the Pennsylvania Supreme Court, which was d enied 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] p etition

... .

... Attorney Daniel C. Bardo was appointed to represent [Appellant]

. Attorney Bardo filed an a mended [PCRA] p etition

...J

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on [Appellant]’ s behalf on September 24, 2021. In his a mended

p etition, [Appellant] argued that his trial counsel, Daniel Straszynski, Esquire, was ineffective for fail ing to call a witness,

P

. M

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

o rder scheduling a hearing on [Appellant ’s petition]

. At the January 24, 2022 [] h earing, Attorney Straszynski testified
that he learned of a potential witness, P.M., du ring 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 daugh ter 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 wit h the v ictim where the v ictim
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 t rial. ([ 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 v ictim] had made another disclosure to a family member, and [he] considered that the jur yJ

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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 in

chambers meeting on the second afternoon of trial, before the
Commonwealth concluded its case

- in

- chief but after the v ictim had already testified. During the discussion, Attorney Straszynski requested permission to call P.M. for impeachment purposes pursuant to [P a.R.E.] 813(b). Attorney Straszynski acknowledged that he had not laid the proper foundation because he had not
confronted the v ictim with P. M’ s statement while the v ictim was
on the stand. ( [N.T. Trial]

, [6/ 26/18], a t 241

- 42). However, Attorney Straszy nski 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 24 4 ] ).

During the PCRA h earing, Attorney Straszynski acknowledged that
he could have fixed his error by recalling the v ictim 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 reas ons

— 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

- in

chief, he feared that if he called P.M., she would be hostile and
that she might bring u p something that she had not disclosed to his investigators. ([ Id. ] at 1 8 ).

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

n otice of a ppeal to the Superior Court. He filed a [Pa.R.A.P. 1925(b) ] c oncise s tatement on October 19, 2022, and the Commonwealth responded on October 24, 2022.

PCRA Court Opinion (PCO), 12/6/22, at 1

- 5 (footno te and unnecessary

capitalization omitted). The PCRA court file d 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] in effectiveness claim when the recordJ

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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 standa rd of review from the grant or denial of post

conviction 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 truth

determining 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 dem onstrate 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 peti tioner
from counsel ’ s act or omission.

Commonwealth v. Johnson , 966 A.2d 523, 532

- 33 (Pa. 2009) (citations

omitted).J

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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

reasonab le 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 cal l 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 h earing testimony
showed that his ulti mate 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.J

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PCO at 8 ( unnecessary capitalization and some brackets omitted). Second, i n

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
h earing, making it almost impossible to discern what her actu al 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 ineffectiv e 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 tha t 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 mo ther as a witness to offer a prior statement about a conversation that she had with the v ictim. In fact, on the morning of June 26, 2018, prior to closing its case

in 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 v ictim allegedly made to P.M. ’ s mother. The
Commonwealth outlined the nature of the statemen t, noting that
the v ictim told P.M. ’ s mother that the abuse started when she was eight years old and that the v ictim 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 den ied 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 p rocedural steps necessary to call P.M. ’ s mother during its case

- in

- chief.

Id. at 8

- 9.J

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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 doin g. 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 bolstere d 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 co nfession 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

- th an 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 questio n. 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

.

_________________ __________ ______ ____ _______

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

. ”).J

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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, b ecause Appellant failed to call P.M. to the stand at

the PCRA hearing, t h is assumption is impossible to veri fy

. 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 concern ing 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 d e monstrating that P.M. was willing to testify in favor of the defense [,] and that the
absence of he r 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 exc ulpatory, out

of

- court statements . We also cannot be certain that she would not have added

other information that could have been harmful to Appellant’s defense.J

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Therefore, Appellant has failed to prove that the absence of P.M.’s testimony

caused him pre judice.

Alternatively, we agree with the Commonwealth that Appellant also

failed to prove prejudice for several additional reasons. T he 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 adjudicati on for rape and incest involving his then twelve

year

- 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 th e 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. L uktisch

, ... 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 a nd charge of fabrication.

Because P.M. ’ s testimony could have opened the door to thisJ

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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 stat ements. 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 outrig ht 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 vic tim 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 tri al, 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

_________________ __________ ______ ____ _______

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 (cit ations to the record omitted).J

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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 review ing the record in this case, we agree with th e

Commonwealth ’ s argument s 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 conc luding that Appellant failed to prove he was

prejudice d 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