J-S17018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

DANIEL EUGENE CONRAD

Appellant No. 1906 MDA 2019

Appeal from the PCRA Order Entered October 15, 2019

In the Court of Common Pleas of Lebanon County

Criminal Division at No.: CP-38-CR-0000007-2017

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

MEMORANDUM BY STABILE, J.: FILED JULY 23, 2020

Appellant Daniel Eugene Conrad appeals from the October 15, 2019 

order of the Court of Common Pleas of Lebanon County (“PCRA court”), which 

denied his petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

46. Upon review, we affirm.

Because of an incident that occurred on September 2, 2016, Appellant 

was charged with driving under the influence (DUI) of a Schedule II or III

controlled substance (methamphetamine), DUI—controlled substance, and 

driving while operating privilege is suspended or revoked.1 The case 

proceeded to a jury trial, at which only the Commonwealth offered testimony. 

First, the Commonwealth called to the stand Trooper Morgan Bright, 

Pennsylvania State Police. Trooper Bright testified that, on September 2, 

____________________________________________

1 75 Pa.C.S.A. §§ 3802(d)(1)(ii), (d)(2), and 1543(a), respectively.
J-S17018-20

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2016, he was assigned to patrol duty when he responded to a dispatch at 

11:40 p.m. of someone being followed. N.T. Trial, 4/18/18, at 7-8. Trooper 

Bright testified that he responded to 6 South Lancaster Street in Jonestown 

Borough, Lebanon County, which was in his jurisdiction. Id. at 8. Upon 

arrival, Trooper Bright observed Appellant standing alone outside a legally 

parked black Chevrolet S-10 pickup truck. Id. According to Trooper Bright, 

no one else was around Appellant. Id. He recalled that the parking space the 

truck occupied was right off a public road and could only be accessed by 

travelling on a public road. Id. at 8-9. Trooper Bright testified that he had 

passed the spot where the truck was parked approximately five to ten minutes 

prior to responding to the dispatch. Id. at 17. At that time, Trooper Bright 

did not observe the pickup truck in the parking spot. Id. 

Trooper Bright testified that he spoke with Appellant who related that, 

all night, he was being followed by “unknown individuals” “from Hazelton all 

the way down here to Jonestown.” Id. at 9. Appellant did not provide any 

specifics on or description of the individuals. Id. According to Trooper Bright, 

Appellant remarked that the ordeal had been on the news and he “had been 

ducking and dodging” the individuals. Id. Trooper Bright recalled that 

Appellant was “fidgety and nervous” and his speech was “paranoid and 

repetitive.” Id. Trooper Bright testified that, based upon his training and 

experience, he recognized Appellant’s mannerisms to be consistent with 

methamphetamine use. Id. at 10. He explained that paranoia and 

hallucinations are indicators of methamphetamine use. Id. at 16. 
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Trooper Bright then asked Appellant whether he had used drugs, 

Appellant responded in the negative. Id. at 10. Thereafter, Trooper Bright 

performed a field sobriety test on Appellant. Trooper Bright conducted a 

“check of his eyes looking for different indicator of impairment, as well as the 

Modified Rhomberg Balance Test, the results of which were consistent with 

drug impairment. Id. at 11-14. Trooper Bright explained: “The count was 

off. He had a fast count, which was consistent with a stimulant such as 

methamphetamine. I observed body tremors, eyelid tremors also consistent.” 

Id. at 14. Trooper Bright recalled that Appellant refused to perform further 

testing on account of an alleged foot injury. Id. at 14-15. Trooper Bright 

testified that he then asked Appellant again whether he had taken any drugs. 

Id. at 15. According to Trooper Bright’s testimony, Appellant remarked that 

“he did one bump of meth around 10 p.m.” Id. Trooper Bright explained a 

bump of meth as “basically like a single use. Sometimes, they will put it on 

their hand, snort it off an object.” Id. 

Trooper Bright testified that he asked Appellant several times whether 

he had driven the pickup truck. Id. at 16. Each time, according to Trooper 

Bright, Appellant answered in the affirmative. Id. Appellant also admitted to 

driving the truck prior to calling the police. Id. Trooper Bright explained that 

the reason he asked Appellant multiple times whether he was driving the truck 

was to “verify that he was actually in full control of that vehicle within a 

reasonable close amount of time since I did not observe him driving the vehicle 

at any point.” Id. at 16-17. Appellant had no companions with him that 
J-S17018-20

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night—he was alone. Id. at 22. Trooper Bright recalled removing a set of 

keys from Appellant, but was uncertain if a vehicle key was on the key ring. 

Id. at 22-23. The Commonwealth played for the jury a video of the traffic 

stop in question that seemingly confirmed Trooper Bright’s account of the 

incident. Id. at 18-20. 

The Commonwealth next offered the testimony of Trooper James 

Paparella. Trooper Paparella testified that, on September 2, 2016, he was on 

patrol duty with Trooper Bright when they received and responded to the 

dispatch at 6 South Lancaster Street in Jonestown. Id. at 31. He testified 

that he did not recall the pickup truck being in the area when he and Trooper 

Bright had driven through it approximately 10 minutes prior to responding to 

the dispatch. Id. at 32. Trooper Paparella recalled that when they 

encountered Appellant, he appeared “extremely nervous,” “repetitive,” and 

“seemed to be paranoid with what he was speaking about.” Id. at 33. Trooper 

Paparella testified that he heard Appellant’s admission to methamphetamine 

use and noticed nobody else with or around Appellant. Id. Trooper Paparella 

recalled that Appellant “said that he had spoken to different officers and that 

there was helicopters involved. It was on the news, that we should have 

known about it. But there was no reports that we found that were legitimate.” 

Id. at 34. 

Trooper Paparella testified that he ran the pickup truck’s plate and the 

truck came back registered to Appellant. Id. At the trial, the parties 

stipulated to the following facts:
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On September 2, 2016, at approximately 11:50 p.m., [Appellant] 

was placed under arrest for DUI by [Trooper Bright]. [Appellant] 

consented to legal blood draw. [Appellant] was transported to the 

Good Samaritan Hospital for blood testing. The blood was drawn 

at 12:34 a.m. on September 3, 2016, by McKenzie Schneck, a 

phlebotomist at the hospital. [Appellant’s] blood was 

subsequently submitted to the MedTox Laboratories for analysis. 

MedTox Laboratories is an approved testing facility for detecting 

the presence of controlled substance pursuant to 46 Pa. Bulletin 

76. [Appellant’s] w-blood sample was analyzed and certified by 

Karla J. Walker, Director with MedTox Laboratories at 3:51 p.m. 

on September 13, 2016. Dr. Walker has been appropriately 

educated and trained to conduct such work. Her education and 

training has been memorialized in her Curriculum Vitae[.] And 

Dr. Walker’s testing revealed the presence of methamphetamine, 

a Schedule II controlled substance in amount of 42 nanograms 

per milliliter and amphetamine, Schedule II controlled substance, 

a metabolite of methamphetamine in the amount of 11 nanograms 

per milliliter, in [Appellant’s] blood. . . . And at all times, 

[Appellant’s] blood sample was appropriately maintained and 

preserved for chain of custody purposes.

Id. at 36-37. The jury found Appellant guilty of DUI of a Schedule II or III 

controlled substance (methamphetamine) and driving while operating 

privilege was suspended or revoked, a summary offense. The jury, however, 

acquitted Appellant of DUI—controlled substance. On June 6, 2018, the trial 

court sentenced Appellant to, inter alia, two to five years’ imprisonment for 

DUI.

2

 Appellant filed post-sentence motions, which the court denied on 

October 10, 2018. Appellant did not file a direct appeal. 

On April 22, 2019, Appellant pro se filed the instant PCRA petition, his 

first, alleging several ineffective assistance of counsel claims. The PCRA court 

appointed counsel who filed an amended PCRA petition on May 23, 2019. 

Following evidentiary hearings, the PCRA court, on October 15, 2019, denied 

Appellant’s petition for collateral relief. Appellant appealed. The PCRA court 

____________________________________________

2 The court imposed only a fine of $200.00 for the summary offense. 
J-S17018-20

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directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained 

of on appeal. Appellant complied, raising five assertions of error. In response, 

the PCRA court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant 

is not entitled to relief.

On appeal,3 Appellant presents five issues for our review. 

[I.] Whether Appellant was denied his constitutionally guaranteed 

right to effective representation when trial counsel failed to 

adequately defend Appellant by failing to argue a defense to the 

charges and failing to properly cross-examine witnesses?

[II.] Whether Appellant was denied his constitutionally guaranteed 

right to effective representation when trial counsel failed to 

subpoena Ms. Simcott to testify at trial that Appellant was not in 

control of the key to the vehicle and therefore was not in control 

of the vehicle. [Trial court] also failed to call additional witnesses?

[III.] Whether Appellant was denied his constitutionally 

guaranteed right to effective representation when trial counsel 

failed to request the complete jury trial transcript and therefore 

was unable to appeal the issue of inadequate jury instructions as 

it related to the elements of DUI?

[IV.] Whether Appellant was denied his constitutionally 

guaranteed right to effective representation when trial counsel 

failed to allow Appellant to testify?

[V.] Whether Appellant was denied his constitutionally guaranteed 

right to effective representation when trial counsel failed to object 

to the following comments made by the Commonwealth at trial: 

“Defendant didn’t take the stand,” and “Defendant was handcuffed 

and placed into the back of the vehicle”?

Appellant Brief at 4-5. 

____________________________________________

3 “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.’” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting 

Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
J-S17018-20

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As stated, Appellant’s claims before us involve ineffective assistance of 

counsel. A PCRA petitioner is entitled to relief if he pleads and proves that 

prior counsel rendered ineffective assistance of counsel. 42 Pa.C.S.A. § 

9543(a)(2)(ii). “To prevail on an [ineffectiveness] claim, a PCRA petitioner 

must plead and prove by a preponderance of the evidence that (1) the 

underlying legal claim has arguable merit; (2) counsel had no reasonable basis 

for acting or failing to act; and (3) the petitioner suffered resulting prejudice.” 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 2015) 

(en banc). “A petitioner must prove all three factors of the “Pierce[4]test,” 

or the claim fails.” Id. Put differently, “[t]he burden of proving ineffectiveness 

rests with Appellant.” Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 

2005). 

Instantly, after careful review of the record, and the relevant case law, 

we conclude that the PCRA court accurately and thoroughly addressed the 

merits of Appellant’s issues. See PCRA Court Opinion, 1/2/20, at 8-16. The 

PCRA court determined that Appellant’s first issue, whether trial counsel 

adequately defended him with respect to the Commonwealth’s argument that 

Appellant had driven the pickup truck prior to the troopers’ arrival, lacked 

merit. Id. at 10-11. The court reasoned that counsel not only cross-examined 

the troopers about whether Appellant possessed the keys to the truck on the 

night in question, but also argued to the jury that insufficient evidence existed 

____________________________________________

4 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
J-S17018-20

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to conclude that Appellant was operating the truck. Additionally, trial counsel 

credibly testified at the PCRA hearing that Appellant admitted to her that he 

had been driving the truck. Id. The PCRA court also found Appellant’s second 

issue to lack merit. Id. at 11-13. Appellant alleged that trial counsel was 

ineffective in failing to subpoena Melissa Simcott to establish that she, not 

him, had driven the truck on the night at issue. The PCRA court found that 

Appellant never mentioned Ms. Simcott’s name to trial counsel or law 

enforcement at any point prior to or at the time of trial. Additionally, the court 

determined that, despite multiple opportunities over a period of three months, 

Appellant was either unable or unwilling to call Ms. Simcott to testify at the 

PCRA hearing to offer the alleged exculpatory evidence. Id. at 12-13. 

With respect to Appellant’s third issue, relating to jury instructions, the 

PCRA court concluded that it too lacked merit. The court explained that the 

jury was instructed properly on the DUI charge. Id. at 13-14. Similarly, 

Appellant also does not obtain relief on his fourth issue. Appellant argues that 

his trial counsel prevented him from testifying at trial. The PCRA court found 

Appellant’s allegations to be self-serving and incredible. In crediting counsel’s 

testimony, the PCRA court concluded that Appellant, on his own volition, 

decided to remain silent during trial. Id. at 14. The court found that trial 

counsel did not coerce Appellant into reaching this decision. Furthermore, the 

PCRA court also found that Appellant had admitted to counsel throughout the 

proceedings that he drove the pickup truck. Finally, the PCRA court concluded 

that Appellant’s fifth issue also lacked merit. Appellant argues that the 
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Commonwealth stated to the jury during closing argument that Appellant 

“didn’t take the stand.” The PCRA court found this argument to be incredible 

and inconsistent with the record. The court found that the transcript 

“establishes beyond any doubt that the prosecutor never mentioned or sought 

to take advantage of [Appellant’s] failure to testify at trial.” Id. at 16. 

In sum, we conclude that Appellant’s ineffective assistance of counsel 

claims lack merit. Accordingly, we affirm the PCRA court’s October 15, 2019 

order denying Appellant PCRA relief. We further direct that a copy of the PCRA

court’s January 2, 2020 Rule 1925(a) opinion be attached to any future filings 

in this case.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/23/2020
') Circulated 06/26/2020 11 :54 AM 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION 

COMMONWEAL TH OF 

PENNSYLVANIA 

v. 

DANIEL CONRAD 

APPEARANCES 

0 

U1 

Benjamin Baker, Esquire For Commonwealth of Pennsylvania 

DISTRICT ATTORNEY'S OFFICE 

Melissa Montgomery, Esquire For Daniel Conrad 

OPINION BY CHARLES, J., January 2, 2020 

After being convicted of Driving Under the Influence of a Controlled 

Substance, the DEFENDANT has filed a Post-Conviction Relief Act (PCRA) 

Petition seeking to re-write history. The DEFENDANT now claims that his 

trial counsel should have proven that he was not operating a motor vehicle 

on October 6, 2016. He makes this bold claim ... 

- Despite the fact that police located the DEFENDANT - and no one else 

- directly next to his Chevy S-10 pick-up truck; 

1 
- Despite the fact that the pick-up truck was located in a parking space 

that was vacant five (5) to ten (10) minutes prior to arrival by police; 

- Despite the fact that the DEFENDANT told police officers that he had 

been driving the pick-up truck and had been followed "all night from 

Hazelton down here to Jonestown"; and 

Despite the fact that he told his own lawyer on multiple occasions that 

he had been driving the pick-up truck. 

For reasons that we will articulate in more detail within the body of this 

Opinion, we categorically reject the DEFENDANT's recent and self-serving 

proclamations that someone else was operating the vehicle. 

I. FACTS 

On October 6, 2016, Daniel Conrad (hereafter DEFENDANT) was 

charged with one (1) count of Driving Under the Influence (DUI) of a 

Schedule II or I Controlled Substance, one (1) count of DUI of a Controlled 

Substance - Incapable of Safe Driving, and one (1) count of Driving While 

Operating Privileges are suspended or Revoked. These charges related 

to an incident that occurred on September 2, 2016, when Trooper Morgan 

Brig ht (hereafter BRIG HT) and Trooper James Papa rel la (he re after 

PAPARELLA) responded to a dispatch of someone being followed at 

around 11 :40pm, at 6 South Lancaster Street in Jonestown Borough, 

Lebanon County, Pennsylvania. (N.T. 7-8) DEFENDANT was standing 

outside of a black Chevy S-10 pickup truck. The truck was legally parked 

in a parking stall facing in towards the curb. (N.T. 8). The parking spot 

2 
was within. a Jonestown Borough open parking lot accessible only by 

traveling on a roadway in Pennsylvania. (N. T. 9). That parking spot was 

vacant 10-15 minutes before the dispatch. (N.T. 17). 

BRIGHT spoke to DEFENDANT. DEFENDANT related to BRIGHT 

that he was being followed by unknown individuals "all night from Hazelton 

all the way down here to Jonestown." BRIGHT indicated that DEFENDANT 

"mentioned that it had been on the news, and that he had been ducking 

and dodging them around the Borough all night." (N.T. 9). 

Based on BRIGHT's training and experience, BRIGHT assessed that 

DEFENDANT presented actions that are consistent with methamphetamine 

drug use. These actions included paranoia and repetitive speech, 

fidgeting movements and nervous activity. BRIGHT asked DE FEN DANT if 

he had used drugs and DEFENDANT initially said no. (N.T. 10). 

DEFENDANT was unaware of the time of day, believing it was actually two 

and one-half hours earlier than the actual time of nearly midnight. 

DEFENDANT related that he was tired from driving all day. (N.T. 10-11). 

BRIGHT again asked DEFENDANT if he had use methamphetamine. 

DEFENDANT again denied use. 

BRIGHT performed field sobriety tests on DEFENDANT. BRIGHT 

conducted a "check of his eyes looking for different indicators of 

impairment, as well as the modified Romberg Balance Test." (N.T. 11). 

BRIGHT observed that DEFENDANT displayed symptoms showing "some 

ind icat ion of impairment" to be consistent with methampheta mine use. 

3 
(N.T. 14). BRIGHT asked to conduct other field sobriety tests. 

DEFENDANT demurred and "implied that he had a medical condition with 

his feet that wou Id i mpai r-i mpede his ab i I ity to conduct the tests." ( N. T. 

14-15). 

BRIGHT again asked DEFENDANT if he had used 

methamphetamine. DEFENDANT told BRIGHT he had "used it earlier in 

the day. He did one bump of meth around 10p.m." (N.T. 15). PAPARELLA 

observed DEF EN DAN T's mannerisms to be nervous, repetitive and 

paranoid. (N.T. 33). PAPARELLA heard DEFENDANT admit to using 

methamphetamine. (N.T. 33). 

BRIGHT asked DEFENDANT several times if he drove the black 

Chevy S-10 pickup truck. DEFENDANT told BRIGHT that he was driving 

just prior to calling the Pennsylvania State Police to report being followed. 

BRIGHT indicated that paranoia and hal I ucinations are consistent 

indicators of methamphetamine use. BRIG HT asked many times to verify 

that DEFENDANT "was actually in control of that vehicle within a 

reasonable close amount of time since I [BRIGHT] did not actually observe 

him driving the vehicle at any point." (N.T. 16-17). 

BRIGHT and PAPARELLA had driven through the area where the 

vehicle was 5 to 1 O minutes prior to receiving the dispatch call involving 

DEFENDANT. BRIGHT and PAPARELLA did not see the pickup at that 

time. (N.T. 17, 22, 32). At the time of dispatch, no companions were with 

DEFENDANT. (N.T. 22, 33) DEFENDANT's keys and wallet were removed 

4 
from DEFENDANT. BRIGHT did not confirm that there was a vehicle key 

in the set of keys. (N.T. 23) BRIGHT did not observe drug paraphernalia 

in plain view of the vehicle. There was no indication that drugs were used 

recently inside the vehicle. (N. T. 22-23). 

DEFENDANT consented to a legal blood draw, which was conducted 

at 12:34a.m. on September 3, 2016 at the Good Samaritan Hospital, 

Lebanon, Pennsylvania. (N. T. 36). D EFE NDANT's whole-blood sample 

analysis revealed the presence of methamphetamine and amphetamine. 

(N.T. 36-37). 

II. PROCEDURAL HISTORY 

On April 18, 2018, the DEFENDANT was tried and found guilty by a 

Lebanon County jury on charges of Driving Under the Influence of a 

Controlled Substance. He was found guilty by this Court of Driving While 

Operating Privileges Were Suspended or Revoked. On June 6, 2018, the 

DEFENDANT was sentenced to serve two (2) to five (5) years in a State 

Correctional facility. Shortly thereafter, the DEFENDANT filed PostSentence Motions. This Court denied those Post-Sentence Motions via an 

Opinion dated October 10, 2018. 

On April 22, 2019, the DEFENDANT filed a prose PCRA Petition. We 

appointed Attorney Melissa Montgomery to represent the DEFENDANT 

regarding his PCRA. An initial hearing was conducted on July 8, 2019. As 

is the custom of this Court, and before any testimony was presented, we 

5 
solicited a statement from the DEF EN DA NT's attorney about the issues that 

were being pursued. The following issues were identified: 

(1) That tria I cou nse I was ineffective for failing to present evidence 

that would have proven that the DEFENDANT was not driving; 

(2) That defense counsel was ineffective for failing to call Melissa 

Simcott as a witness. According to the DEFENDANT, Ms. Simcott 

would have acknowledged that she was driving the vehicle. 

(3) That defense counsel failed to object to the Court's instruction 

that omitted control of the movement of a vehicle as an element of 

the DUI offense. 

(4) That trial counsel prevented the DEFENDANT from testifying. And 

(5) That trial counsel failed to object when the prosecutor argued 

during summation that the DEFENDANT should be convicted 

because he chose not to testify. 

After we began to hear testimony, it became quickly apparent that 

both sides should have subpoenaed witnesses who had material information 

regarding the issues outlined above. To enable the parties to subpoena 

the needed witnesses, we suspended testi many and re-scheduled the 

conclusion of the PCRA hearing for October 10, 2019. 

On October 10, 2019, DEFENDANT's trial counsel, Elizabeth Judd, 

provided testimony. However, the DEFENDANT could not or would not 

present testimony from his proposed witness, Melissa Simcott. 

6 
At the conclusion of testimony, we issued a Court Order dated 

October 15, 2019 to deny the DEFENDANT's PCRA Petition. The 

DEF EN DANT filed an Appeal. We solicited a Concise Statement of Errors 

from the DEFENDANT's counsel. One was provided on December 5, 2019. 

The DEFENDANT's Rule 1925 issues were similar, but not identical to the 

ones he raised prior to commencement of the PCRA proceeding. The issues 

the DEFENDANT identified in his PCRA Petition were as follows: 

(1) That defense counsel was ineffective for failing to establish that 

the DEFENDANT was not operating a motor vehicle on October 6, 

2016. 

(2) That trial counsel was ineffective for failing to subpoena Melissa 

Simcott. 

(3) That trial counsel was ineffective for not requesting a transcript of 

the jury instructions provided by the Court. 

(4) That trial counsel was ineffective for "not allowing" the 

DEFENDANT to testify, and 

(5) That trial counsel was ineffective for filing to object to the 

prosecutor's summation. 

Although we are loathe to request our already over-burdened court 

reporters to prepare add itio na I transcripts, we nevertheless so Ii cited a 

transcript of the portion of the Prosecutor's summation and our jury 

instructions that addressed the elements of the DU I offense. That transcript 

7 
has been prepared and is now part of the record in this case. It clearly 

shows that this Court did tell the jury that control over the movement of a 

motor vehicle is an element to any DUI offense. 

We will address all of the DEFENDANT's PCRA issues within the body 

of this Opinion. 

Ill. LEGAL PRINCIPLES GOVERNING PCRA PETITIONS 

The PCRA provides for an action by which innocent persons 

convicted of crimes that they did not commit and persons serving illegal 

sentences can obtain relief. 42 Pa.C.S. § 9542. The PCRA is the exclusive 

method by which collateral relief may be obtained in Pennsylvania. 

Commonwealth v. Chester, 733 A.2d 1242, 1250 (Pa. 1999). To be 

eligible for relief under the PCRA, a defendant must prove the following 

elements by a preponderance of the evidence: (1) He must prove that he 

has been convicted of a crime under the laws of this Commonwealth and 

that he is serving a sentence of imprisonment, probation or parole for a 

crime; (2) he must prove that the conviction resulted from one of the 

enumerated errors listed in § 9543(a)(2); and (3) he must prove that the 

allegation of error has not been previously litigated or waived. Finally, he 

must prove that the failure to litigate the issue prior to or during trial could 

not have been the result of any rational, strategic or tactical decision by 

counsel. 42 Pa.C.S. § 9543(a). 

8 
Trial counsel will always be presumed effective, and the Defendant 

bears the burden of proving otherwise. Commonwealth v. Lewis, 708 A.2d 

497, 500 (Pa.Super. 1988) (citing Commonwealth v. Williams, 570 A.2d 

75, 81 (Pa. 1990)). In determining whether counsel rendered ineffective 

assistance, the court must first determine whether the issue underlying the 

claim of ineffectiveness is of arguable merit. Commonwealth v. DiNicola, 

751 A.2d 197, 198 (Pa.Super. 2000) (citing Commonwealth v. Johnson, 

588 A.2d 1303, 1305 (Pa. 1991 )). If the claim is without arguable merit, 

the Court's inquiry ends, because counsel cannot be deemed ineffective for 

failing to pursue a meritless issue. DiNicola, 751 A.2d at 198. 

If a defendant's underlying claim is of arguable merit, we must 

examine the action chosen by trial counsel in order to ascertain if that 

action was designed to effectuate the Defendant's interest. Id. The fact 

that trial counsel's strategy may not ultimately have led to an acquittal does 

not render the strategy legally deficient. Commonwealth v. Spotz, 896 

A.2d 1191, 1235 (Pa. 2006). The Defendant must establish that but for 

counsel's deficient performance, the result of his trial would likely have 

been different. DiNicola, 751 A.2d at 198. 

9 
IV. ANALYSIS 

A.Proof that the DEFENDANT was Driving 

The DEFENDANT now claims that his trial counsel was ineffective for 

failing to question the investigating police officer about the location of the 

DEFEN DAN T's keys, the location where the DEF EN DANT was standing 

and the fact that the officer failed to feel the hood of the DEFENDANT's 

vehicle in order to ascertain if it was warm. The purpose of such testimony 

was to ostensibly establish that the DEFENDANT had not operated the 

pick-up truck prior to arrival of police. 

A review of the trial transcript reveals that Attorney Judd did in fact 

question the investigating officers about the location of the DEFENDANT's 

keys and the fact that the officers did not observe the DEFENDANT driving 

the vehicle. Trial counsel did in fact argue to the jury that there was 

insufficient proof that the DEFENDANT had been operating a vehicle. 

More important. Attorney Judd provided credible testimony at the time of 

the PCRA Hearing that her client admitted to her that he had been driving 

the. vehicle. While it is true that Attorney Judd did not solicit information 

about whether the police felt the hood of the pick-up truck, given the 

totality of all of the rest of the information presented, and given that 

Attorney Judd would have had no way of knowing whether the police did 

in fact detect warmth from the hood of the DEFENDANT's vehicle, we 

cannot and will not equate Attorney Judd's failure to ask that one question 

with ineffectiveness. 

10 
In point of fact, there was overwhelming evidence that DEFENDANT 

operated the pick-up truck. State Police testified that on multiple 

occasions and in multiple ways, the DEFENDANT himself admitted that he 

had been operating the vehicle. In fact, he made a bizarre claim that he 

had been involved in a lengthy chase that began in Hazelton and ended in 

Jonestown where police encountered him and his vehicle. 

Looking at the totality of the record before us, we cannot and will not 

declare Attorney Judd to be ineffective for failing to rebut what was likely 

unassailable - that the DEFENDANT had operated the pick-up truck prior 

to his encounter with police. 

B.Testimony of Melissa Simcott 

The DEFENDANT claims that trial counsel should have subpoenaed 

Melissa Simcott. He claims that Ms. Simcott would acknowledge that she 

was driving the vehicle and he was not. In July at the time of the first 

PCRA Hearing, we advised the DEFENDANT that he would have to procure 

Ms. Simcott's testimony in support of his bald allegations. We afforded 

the DEFENDANT with three (3) months to do so. Even in that time period, 

the DEFENDANT was unable or unwilling to procure testimony from 

Melissa Simcott to corroborate his self-serving claim that she was driving 

the pick-up truck. 

It is common for convicted defendants to file PRA claims based upon 

the premise that their lawyer should have but did not subpoena testimony 

11 
from witnesses. The legal principles governing such situations are very 

well established. A defense attorney's failure to call certain witnesses 

does not constitute per se ineffectiveness. Commonwealth v. 

Washington, 592 Pa. 698, 927 A.2d 586, 599 (2007). In establishing 

whether defense counsel was ineffective for failing to call witnesses, a 

defendant must demonstrate that 1) the witnesses existed and were 

available; 2) counsel was aware of the existence of the witnesses, or 

should have known of their existence and availability; 3) the proposed 

witnesses were ready, wi 11 i ng and, able to testify on behalf of the 

defendant; and 4) the absence of the proposed testimony prejudiced him. 

Commonwealth v. Hall, 549 Pa. 269, 290-92, 701 A.2d 190, 201 

(Pa.1997). 

In this case, the record is devoid of any evidence - other than the 

incredible and self-serving claims of the DEFENDANT himself - that 

Melissa Simcott was driving the pi ck-up truck on October 16, 2016. 

Melissa Simcott was not located in the vicinity of the pick-up truck when 

police arrived. The DEFENDANT did not tell police that the vehicle had 

been operated by Melissa Simcott. The DEFENDANT never told his own 

lawyer that Melissa Simcott was the driver. Despite being given three (3) 

months to pro cu re Ms. S imcott's purportedly exculpatory testimony, the 

DEFENDANT was either unwilling or unable to procure testimony or 

evidence that she was in fact the driver of the pick-up truck. Under such 

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circumstances, the DEFENDANT's claim that trial counsel was ineffective 

for failing to subpoena Melissa Simcott must fail. 

C. Transcript of Jury Instructions 

Nowhere is the DEFENDANT's desperation better exemplified than it 

is with respect to his argument about the Court's jury instructions. Without 

anything other than his own misguided hopes, the DEFENDANT argues 

that this Court failed to instruct the jury that physical control of the 

movement of a motor vehicle was an element of the DU I offense. Neither 

the prosecutor nor the DEFENDANT's attorney recalled the type of glaring 

omission that the DEFENDANT described. In addition, this jurist has 

conducted hundreds of DUI trials during his twenty (20) years on the 

bench. Never have we failed to instruct a jury about the "physical control 

of the movement of a vehicle" element. 

This Court is very reluctant to overburden Lebanon County's already 

overworked court reporters by requiring them to prepare a transcript simply 

because a defendant makes a claim that we know is not accurate. 

Nevertheless, so that this does not devolve into a battle of memories, we 

did procure a transcript of the portion of our jury instruction that addressed 

the e le men ts of DU I. Th at transcript is now pa rt of the record. It clearly 

reveals that this Court properly instructed the jury that physical control of 

the movement of a motor vehicle is an element of the DUI offense. 

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Accordingly, the DEFENDANT's PCRA claim regarding the jury instruction 

of this Court must be denied. 

D. Testimony of the DEFENDANT 

The DEFENDANT claims that his lawyer prevented him from 

testifying. Presumably, the DEFENDANT wanted to tel I the jury that he 

was not the driver of the pick-up on October 16, 2016. We reject the 

DEFENDANT's argument for multiple reasons. 

Trial counsel Elizabeth Judd presented credible testimony that she 

and the DEFENDANT discussed the question of whether or not to testify. 

Attorney Judd stated that the DEFENDANT made the decision not to testify 

and that she never coerced him into making this decision. We find Attorney 

Judd's testimony to be credible. We conclude as a finding of fact that the 

DEFENDANT himself chose not to testify and that choice was not forced 

upon him by Attorney Judd. 

Although the above finding disposes of the DEFENDANT's argument, 

we also need to point out that throughout the proceedings, the 

DEFENDANT admitted to Attorney Judd that he drove the pick-up truck. 

As a lawyer, Attorney Judd has a duty not to suborn perjury or present 

testimony she knows to be false. To the extent that the DEFENDANT now 

believes he should have been called as a witness to deny driving, such 

testimony would have been inconsistent with information the DEFENDANT 

provided privately to Attorney Judd. Th is inconsistency would have 

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created a dilemma in open Court for Attorney Judd as soon as she realized 

the DEFENDANT was lying to the jury. This is a secondary reason why 

Attorney Judd cannot be deemed ineffective for failing to call the 

DEFENDANT as a witness. 

E. Prosecution's Closing Arguments 

The DEFENDANT's last issue is again dependent upon his faulty and 

self-serving memory of what occurred at trial. DEF EN DANT argues th at 

the prosecutor improperly commented upon his failure to take the witness 

stand. The Court does not remember such an argument. Neither did the 

DEFENDANT's trial counsel. Once again, we have asked one of our 

overburdened court reporters to take the time to unnecessarily transcribe 

the prosecutor's closing argument. That transcription is part of the record. 

As with the closing instruction, the transcript establishes beyond any doubt 

that the prosecutor never mentioned or sought to take advantage of the 

DEFENDANT's failure to testify at trial. Once again, this argument by the 

DEFENDANT is nothing more than a red herring. It provides no ground for 

relief under the PCRA. 

V. CONCLUSION 

There is absolutely not validity to any of the DEFENDANT's PCRA 

arguments. It is indeed unfortunate that the DEFENDANT's bogus 

arguments forced the taxpayers of this community to pay for a lawyer to 

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represent the DEFENDANT, a prosecutor to investigate and rebut the 

DEFENDANT's arguments and court reporters who were forced to 

unnecessarily prepare transcriptions to prove what everyone involved in 

this case already knew - that this DEFENDANT is so desperate that he 

will stop at nothing, including fabrication of claims, to avoid responsibility 

tor his own conduct. 

We will now give this case to the Pennsylvania Superior Court with 

our recommendation that the DE FEN DANT's arguments be rejected 

completely. 

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