J-S68034-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DAVID STEPHEN SULLIVAN,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 356 WDA 2016

Appeal from the Order September 29, 2015

in the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0002944-2005

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 17, 2016

David Stephen Sullivan (Appellant) appeals nunc pro tunc from the 

order which denied his petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. This matter returns to us following 

remand for the PCRA court to conduct an evidentiary hearing and render 

findings and conclusions on Appellant’s claim that his trial counsel was 

ineffective for failing to call Appellant’s son, D.S., as a witness at trial.1 

Upon review, we affirm.

 

1

“D.S. was ten years old at the time of trial.” Commonwealth v. Sullivan, 

120 A.3d 370 (Pa. Super. filed February 5, 2015) (unpublished 

memorandum at 5 n.4).
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Appellant was convicted by a jury of various offenses stemming from 

the repeated sexual abuse of his minor stepdaughter, M.B.2 Appellant was 

sentenced to an aggregate term of 18 to 36 years of incarceration. This 

Court affirmed his judgment of sentence, and our Supreme Court denied his 

petition for allowance of appeal. Commonwealth v. Sullivan, 987 A.2d 

825 (Pa. Super. filed October 27, 2009) (unpublished memorandum), appeal 

denied, 8 A.3d 345 (Pa. 2010). Appellant thereafter filed a PCRA petition 

and, following the filing of two amended petitions, the PCRA court dismissed 

the petition. Appellant appealed, and on February 5, 2015, this Court 

affirmed in part, vacated in part, and remanded the case. Commonwealth 

v. Sullivan, 120 A.3d 370 (Pa. Super. filed February 5, 2015) (unpublished 

memorandum). Specifically, this Court held that the dismissal was 

premature and remanded for the PCRA court to make findings as to 

 

2

“M.B. is autistic and suffers from attention deficit hyperactivity disorder 

and depression.” Commonwealth v. Sullivan, 987 A.2d 825 (Pa. Super. 

filed October 27, 2009) (unpublished memorandum at 2). With respect to 

the abuse, M.B. testified that Appellant touched M.B.’s “boobs, vagina, and 

butt;” M.B. touched Appellant’s “nipples, penis, and butt;” they both 

engaged in oral sex, during which Appellant used a strawberry flavored gel, 

telling M.B. it would “taste better;” and Appellant showed M.B. magazines 

depicting couples engaging in sexual intercourse, using the magazines and 

pornographic movies to persuade M.B. “that sex with a parent was a proper 

and normal activity.” Id. at 3-5. M.B. also testified that Appellant “would 

create a ‘club house’ by draping a blanket over a pool table which was 

located in the basement of his mother’s home .... to engage in sexual 

activities;” Appellant took photographs of M.B. in different sexual positions; 

Appellant asked M.B. to touch and lick a fake penis; and Appellant asked 

M.B. to play a sexual dice game stored in a purple bag in the basement. Id.

at 4-5.
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counsel’s basis for not calling D.S. as a witness and whether Appellant 

suffered prejudice. Id. at 7.

The evidentiary hearing was held on September 3, 2015, following 

which the PCRA court denied relief. Appellant untimely filed an appeal, 

which this Court quashed sua sponte. Thereafter, Appellant requested and 

was granted the right to file an appeal nunc pro tunc. This appeal followed.

Appellant presents one issue for our consideration:

Where trial counsel failed to call an exculpatory witness at trial 

who was known to trial counsel but never interviewed, was 

available and willing to testify favorably for Appellant, and whose 

testimony had a reasonable probability of changing the outcome 

at trial, did the [PCRA] court err in finding the decision not to call 

the witness objectively reasonable without a basis in the record 

and contrary to law.

Appellant’s Brief at 1 (unnecessary capitalization omitted). 

In reviewing the denial of PCRA relief, we examine whether the 

PCRA court’s determination is supported by the record and free 

of legal error. The scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level. It is 

well-settled that a PCRA court’s credibility determinations are 

binding upon an appellate court so long as they are supported by 

the record. However, this Court reviews the PCRA court’s legal 

conclusions de novo. 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (internal 

quotation marks and citations omitted).

As Appellant’s claim pertains to the alleged ineffective assistance of his 

trial counsel, we further observe the following.

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

by a preponderance of the evidence, that his conviction or 
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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. ...

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) 

(internal quotation marks and citations omitted). We further observe the 

following with respect to the reasonable-basis and prejudice prongs of the 

ineffectiveness test.

The test for deciding whether counsel had a reasonable basis for 

his action or inaction is whether no competent counsel would 

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

chosen, offered a significantly greater potential chance of 

success. Counsel’s decisions will be considered reasonable if 

they effectuated his client’s interests. We do not employ a 

hindsight analysis in comparing trial counsel’s actions with other 

efforts he may have taken.

Prejudice is established if there is a reasonable probability that, 

but for counsel’s errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.
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Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2014) (internal 

quotation marks and citations omitted).

Regarding ineffective assistance of counsel claims based on a failure to 

investigate and call a witness, this Court has explained that

[n]eglecting to call a witness differs from failing to investigate a 

witness in a subtle but important way. The failure to investigate 

presents an issue of arguable merit where the record 

demonstrates that counsel did not perform an investigation. It 

can be unreasonable per se to conduct no investigation into 

known witnesses. Importantly, a petitioner still must 

demonstrate prejudice. To demonstrate prejudice where the 

allegation is the failure to interview a witness, the petitioner 

must show that there is a reasonable probability that the 

testimony the witness would have provided would have led to a 

different outcome at trial. 

In this respect, a failure to investigate and interview a witness 

claim overlaps with declining to call a witness since the petitioner 

must prove: (i) the witness existed; (ii) the witness was 

available to testify; (iii) counsel knew of, or should have known 

of, the existence of the witness; (iv) the witness was willing to 

testify; and (v) the absence of the testimony was so prejudicial 

as to have denied the defendant a fair trial. 

Pander, 100 A.3d at 638-39 (internal quotation marks and citations 

omitted). See also Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa. 

Super. 2013) (“Thus, trial counsel will not be found ineffective for failing to 

investigate or call a witness unless there is some showing by the appellant 

that the witness’s testimony would have been helpful to the defense.”).

Appellant argues that D.S.’s testimony would have been helpful, given 

the lack of evidence corroborating M.B.’s testimony as to the abuse, in 

attacking M.B.’s credibility and establishing Appellant’s defense that M.B. 
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was leveling false allegations against Appellant in anger as a result of her 

learning that he was not her biological father. Appellant’s Brief at 22-25. 

Appellant argues that D.S. was the only other witness who could testify 

specifically that M.B. was lying about the abuse. Id. at 22, 25, 27. 

Appellant points to D.S.’s testimony offered at the PCRA hearing that (1) he 

was around the house with Appellant and M.B. “all the time” and never saw 

anything “going on” between them, (2) on two occasions he had a 

conversation with M.B. during which she admitted she had lied about the 

allegations, and (3) he knew M.B. was lying because D.S. was present and 

never apart from M.B. while at home during the times M.B. said the abuse 

took place. Id. at 22-24. Appellant contends that counsel did not even 

interview D.S., thereby rendering his bases for failing to call him 

unreasonable, and that Appellant was precluded from presenting “a witness 

to essentially corroborate his own testimony that the allegations were false, 

and more importantly, the complaining witness lied when she made them.” 

Id. at 21-22, 25-26, 28.

At the PCRA hearing, D.S. testified that he was aware of the 

circumstances that led to Appellant’s being incarcerated, including 

“accusations that [M.B.] had made regarding inappropriate sexual contact.” 

N.T., 9/3/2015, at 5. D.S. knew that the incidents were alleged to have 

occurred in the basement of the house, and confirmed that he and his sister 

were often down there. Id. at 16. D.S. indicated that, during that time, 
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Appellant was responsible for him and his grandmother was at work. Id. at 

18. D.S. testified to a brief description of the basement and the “pool table 

that had been mentioned as where the incidents had taken place,” stating it 

was “very small” with storage containers filled with toys underneath and 

“wood that came down was like with [sic] structures to keep it up,” such that 

the containers were hard to remove at times. Id. at 8, 16-17.

D.S. also explained that when Appellant was first arrested, a 

representative from Children, Youth, and Families asked D.S. if he “ever saw 

anything going on” and D.S. told the representative he “did not.” Id. at 7. 

The representative asked D.S. “how long -- how often [D.S.] was around the 

house with [Appellant] and [M.B.],” and D.S. told him he was “there all the 

time.” Id. at 7-8. On cross-examination, D.S. confirmed that he was 

present during all the time of when the incidents were alleged to have 

occurred and that he “did not witness any act.” Id. at 29-30, 32. 

D.S. also recalled having a conversation with M.B. on two occasions, 

“[o]ne in March of 2005 and one in May of 2005.” Id. at 9. As for the 

March 2005 conversation, D.S. stated as follows:

[D.S.]: [M.B.] told me she wished things could go back to the 

way they were. And I told her -- I asked her, “Why did you lie?” 

She said she wished she didn’t. I told her she needs to tell 

somebody and tell the truth. And she responded by saying, “I 

need to go talk to nana,” and she it [sic] ran off.”

[Appellant’s Counsel]: Okay. ... You said that your sister told 

you that she wanted things to go back to the way they were. 

What did you understand that to mean, sir?
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[D.S.] Back to living with my dad and my grandmother after my 

parents divorced.

***

[Appellant’s Counsel]: Let me go back to conversations that you 

had with your sister. You said or she told you that she wished 

things had gone back to the way they were and you said why did 

you lie. Tell me why that was your response, sir.

[D.S.] Because I knew she lied. She lied all the time and I 

knew she lied about this because I was there. Where she said 

the allegations took place. All the time.

[Appellant’s Counsel]: There was never a time when you 

weren’t with your sister?

[D.S.]: Not at home.

Id. at 9-10, 12-13. D.S. further testified that the conversations in March 

2005 and May 2005 were consistent. Id. at 20. D.S. stated that, with 

respect to the conversation in May, he told M.B. that “she needs to tell the 

truth. And she responded with ‘It is too late for that now.’ After that, she 

run ran [sic] away from the house, and [D.S] didn’t have a chance to talk to 

her after that.” Id. at 20-21. 

Although D.S. believed that, when he had the conversation with M.B., 

M.B. was not telling the truth, when asked if she told him that, D.S. said no. 

Id. at 20. When asked if he was aware if M.B. told anyone that she had 

made up an allegation, D.S. responded no. Id. at 13. D.S. also explained 

that he told several adults what M.B. had expressed to him, including his 
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grandmother, his mother, his aunt, and his uncle, and that his mother’s side 

of the family did not believe him. Id. at 13-14, 21. 

D.S. testified that, although he knew the allegations against Appellant, 

he was not present at Appellant’s trial, did not read the trial transcript about 

what occurred, and had no knowledge about the actual testimony and facts 

that came out at trial. Id. at 5, 23-24, 32. D.S. stated that he first learned 

of the allegations through his maternal grandparents, but he could not 

“recall specifics” about what they said and, when asked if he could state 

“anything else about [his] knowledge of the allegations against [his] father,” 

D.S. said no. Id. at 30, 32. D.S. also stated that he had never discussed 

the case with anyone but Appellant’s PCRA attorney. Id. at 23-25.

D.S. said he had a normal family relationship with his sister prior to 

the allegations being made against Appellant, but that it ended about a year 

after the trial and he has not spoken with her since. Id. at 19, 23, 28. D.S. 

stated that he currently has a relationship with Appellant and visits him in 

prison, that they wrote letters to each other, and that he misses his dad and 

hopes that he comes home. Id. at 27-28. 

In addressing Appellant’s claim on appeal, the PCRA court concluded 

that counsel had a reasonable basis for failing to call D.S. as a witness at 

trial. At the hearing, the PCRA court explained as follows, in relevant part:

[Counsel] did present a reasonable basis for not calling the son 

in this case and he gave good reasons. I’ll present them. He 

said that because of the age of the child, he did not want to 
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alienate the jury. He was not sure how consistent the child’s 

testimony would be. He would be concerned about [the 

Commonwealth’s] often-aggressive cross-examination of defense 

witnesses and he talked about concerns.

N.T., 9/3/2015, at 75. In its subsequent opinion issued pursuant to 

Pa.R.A.P. 1925(a), the PCRA court further found that counsel

testified that it was his practice to speak to all family members 

and he did speak with [D.S.], though he did not have an 

independent recollection of the conversation. He was testified 

that he did not want to put [D.S.] on the stand because he 

believed child witnesses could be unpredictable. He was 

particularly worried because [Appellant] had initially made a 

statement to the police that the allegations were “not all true[,”] 

and thus he felt [D.S.] would be vulnerable to cross-examination 

on which of the allegations were true. [Counsel] was familiar 

with the prosecutor, ... and believed her to be a good prosecutor 

who was particularly skilled with child witnesses and it was his 

opinion that she may have been able to elicit unexpected 

information from [D.S.] on cross-examination. Moreover, 

[counsel] was concerned in general about how a jury would react 

to a father subjecting his young son to testimony in general and 

also in having him testify against his sister. Finally, [counsel] 

testified that he discussed all matters of strategy and witnesses 

with [Appellant], including whether to have [D.S.] testify, and 

[Appellant] agreed with the strategy at the time.

PCRA Court Opinion, 5/4/2016, at 6-7 (citations and emphasis omitted).

The crux of Appellant’s argument on appeal is that, notwithstanding 

the bases offered by counsel for not calling D.S., counsel’s inaction cannot 

be deemed reasonable because counsel did not even speak to D.S. 

Appellant’s Brief at 21-22, 25-26, 28; see also Appellant’s Reply Brief at 1-

5. However, as stated above, the PCRA court found that counsel did speak 

with D.S. Viewing the record in the light most favorable to the 
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Commonwealth as the prevailing party below, the record supports the PCRA 

court’s finding. Specifically, though counsel testified that he did not have a 

specific recollection of speaking with D.S., counsel also stated that he 

“believe[d he] did interview” D.S., that “as a practice, that is something [he] 

would have done,” and that he did talk to him about what he would testify 

to, but not about whether he was going to testify. See N.T., 9/3/2015, at 

37, 39-41, 46-47, 56-57, 59-60.

Moreover, the record supports the PCRA court’s findings with respect 

to the reasons offered by counsel for not calling D.S. at trial. Specifically, 

counsel stated that he was concerned that putting a 10 or 11 year old child 

on the stand can alienate the jury and that he was concerned about how 

D.S. would respond to the prosecutor’s cross-examination, given that the 

prosecutor had significant experience in dealing with child witnesses. Id. at 

37-38, 40, 52, 55. Moreover, counsel explained that, when police read 

Appellant the affidavit of probable cause with respect to the charges, 

Appellant responded, “That’s not all true,” and counsel was concerned that 

the prosecutor would ask D.S. what parts were true in his opinion. Id. at 

38. Counsel also testified to how the jury might view Appellant in light of 

calling his own son to testify against his sister, as it “could be interpreted by 

some as a desperate” and “non-caring parental act.” Id. at 52-53. Further, 

counsel testified that he discussed D.S.’s testifying with Appellant and that 

Appellant never expressed any dissatisfaction with the decisions he and 
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Appellant were making, particularly with regard to strategy. Id. at 39, 46-

47, 54-55, 57, 59. In light of the foregoing, the PCRA court did not err or 

abuse its discretion in concluding that counsel had a reasonable basis for not 

calling D.S. as a witness. Compare Commonwealth v. Matias, 63 A.3d 

807, 809-12 (Pa. Super. 2013) (affirming PCRA court’s conclusion that 

counsel was ineffective for failing to call a child-witness where counsel did 

not interview her and she would have contradicted victim’s testimony that 

she was an eyewitness to the sexual abuse at issue).

Moreover, we conclude that Appellant has failed to establish prejudice. 

At the conclusion of the hearing, the PCRA court stated the following, in 

relevant part, on the record.

I think first I’m going to address the credibility of [D.S.], 

[Appellant’s] son. I feel that even today, there was an issue of 

credibility. For instance, his description of the pool table, which 

I remember photographs of, was not accurate and it was shown 

that there was space under the pool table.

He said that he was never, ever separated from [M.B.], 

which would mean to me that they went to bed at the same 

time, they got up at the same time, they had their nightmares at 

the same time, they bathed and went to the bathroom at the 

same time, and this certainly sheds some question mark on his 

credibility. 

He did testify that [M.B.] said that she wished things would 

go back to where they were and that she lied. But there is no 

testimony about what she lied about. And I would imagine that 

a child in this situation would like things to go back. There are 

several viable interpretations. One could be just that they would 

go back to the way it was before [Appellant] was molesting her.

Id. at 74-75. 
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Upon review of the foregoing, it is clear that the PCRA court did not 

find that D.S.’s testimony was credible and that, to the extent that it was, its 

absence was not “so prejudicial as to have denied [Appellant] a fair trial.” 

Pander, 100 A.3d at 639. In this regard, Appellant, citing Commonwealth 

v. Johnson, 966 A.2d 523 (Pa. 2009), argues that “[i]t is not for the [PCRA 

c]ourt to decide if the witness would have been found credible and would 

necessarily have resulted in an acquittal. The jury was robbed of testimony 

that was exculpatory and it was up to the jury to decide whether to believe 

[D.S.] or not. If believed, there is a reasonable probability the outcome 

would have been different.” Appellant’s Brief at 28 (citation omitted); see 

also Appellant’s Reply Brief at 7. 

In Johnson, the PCRA court concluded that Johnson’s trial counsel 

was ineffective for failing to investigate and call certain fact witnesses at 

trial. Johnson, 966 A.2d at 534. The PCRA court concluded that the failure 

was prejudicial to Johnson, but in so doing, it declined to render credibility 

determinations with respect to the witnesses, explaining that task belonged 

to the jury. Id. at 535. Our Supreme Court held that the PCRA court’s 

conclusion was in error, explaining:

A PCRA court passes on witness credibility at PCRA 

hearings, and its credibility determinations should be provided 

great deference by reviewing courts. Indeed, one of the primary 

reasons PCRA hearings are held in the first place is so that 

credibility determinations can be made; otherwise, issues of 

material fact could be decided on pleadings and affidavits alone.

***
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This Court has made clear that, in cases where the PCRA 

court declined to hold a hearing, and where an assessment of 

witness testimony was essential to a petitioner’s ineffectiveness 

claims, the PCRA court must make specific credibility 

determinations. When a PCRA hearing is held, and the PCRA 

court makes findings of fact, we expect the PCRA court to make 

necessary credibility determinations. 

Johnson, 966 A.2d at 539-40 (citations and footnote omitted).

Pursuant to Johnson, the PCRA court correctly rendered a credibility 

determination with respect to D.S.’s testimony. A review of the court’s 

rationale as it relates to D.S.’s credibility reveals that it determined that “the 

nature and quality” of his testimony was not “such that there is a reasonable 

probability that the jury would have credited it and rendered a more 

favorable verdict.” Johnson, 966 A.2d at 542. Viewing the evidence in the 

light most favorable to the Commonwealth, we discern no abuse of 

discretion or error of law in this regard. 

Because Appellant has failed to establish that he is entitled to relief on 

his ineffectiveness claim, we affirm the order of the PCRA court.3

Order affirmed.

 

3 To the extent our rationale differs from that of the trial court, we note that 

“[t]his Court may affirm a PCRA court’s decision on any grounds if the record 

supports it.” Commonwealth v. Oliver, 128 A.3d 1275, 1279 (Pa. Super. 

2015) (quoting Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 

2012)).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016