J-S53021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM D. CLARK

Appellant No. 2297 EDA 2016

Appeal from the PCRA Order July 13, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003631-2010

BEFORE: BENDER, P.J.E., OLSON, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED OCTOBER 20, 2017

Appellant, William D. Clark, appeals from the order entered on July 13, 

2016, dismissing his petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Appellant was arrested in January 2010 and the Commonwealth later 

charged him with committing rape, involuntary deviate sexual intercourse, 

and related offenses against his niece, S.P. (hereinafter “Complainant 

Niece”), and, at a separate information, with committing aggravated 

indecent assault and related offenses against one of his daughters, S.C. 

(hereinafter “Complainant Daughter”). On January 3, 2011, the trial court 

granted the Commonwealth’s motion to consolidate the separate 

informations for trial, pursuant to Pennsylvania Rule of Criminal Procedure 

582(A)(1)(a). Trial Court Order, 1/3/11, at 1.
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The case proceeded to a jury trial. Prior to opening statements, the 

trial court informed the jury that “[s]tatements or arguments made by 

counsel do not constitute evidence.” N.T. Trial, 6/19/13, at 30. The trial 

court also informed the jury:

Opening statements, as with any other statements made by 

counsel, do not constitute evidence and you are not to 

consider these opening statements as established facts. 

The only purpose of an opening statement is to give you a 

general outline of what the case is about so that you will 

have a better understanding about how each piece of 

evidence fits in subject, of course, to your evaluation as to 

its credibility, its accuracy and the weight to be given to it.

You are not to conclude that counsel will necessarily be able 

to prove what they say they expect to prove nor that the 

Court will necessarily permit such evidence to be 

introduced.

Id. at 33-34.

During the Commonwealth’s opening statement, the Assistant District 

Attorney (“ADA”) summarized the evidence that she intended to introduce at 

trial. The ADA informed the jury that it would hear testimony from 

Complainant Daughter, Complainant Daughter’s sisters (N.C. and E.C.), and 

Complainant Niece. As to the anticipated testimony of Complainant 

Daughter and Complainant Daughter’s sisters, the ADA declared:

As these young women were growing up, their mom and 

[Appellant’s] wife . . . worked full time to provide for the 

family. She often had the 2:00 p.m. to 10:00 p.m. shift. 

So after school when the kids were doing their homework 

and getting ready for bed, . . . [Appellant] was the one in 

charge of making sure all those things were done. And 

[Appellant] had certain rules.
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One of those rules you will hear throughout the course of 

this trial involved bathing. Specifically, each of his 

daughters will testify that when they were finished washing 

themselves, they were required to call [Appellant], their 

dad, into the bathroom and they would have to stand there 

completely naked while [Appellant] checked them. Now, 

checking them involves several things. It involved him 

inspecting their bodies to make sure they cleaned 

themselves properly. Specifically[,] he would inspect their 

breasts and vaginal areas even after they had gone through 

puberty and were fully developed. . . .

You’ll hear from [Complainant Daughter]. She’s the 

youngest daughter. She’ll tell you that she was about 13 

when she said to [Appellant], her dad, you know, this is 

really making me uncomfortable and she’ll tell you that she 

was already fully developed at that point. She had been 

through puberty. She said, dad, I don’t like the way this 

feels when this happens. And he told her, you know what, 

I’m your dad. You shouldn’t feel like that, and he continued 

to check her.

She’ll tell you that he would inspect her breasts, her 

buttocks and her vaginal area. He would take his fingers in 

the wash cloth and actually penetrate her vagina with the 

wash cloth himself during this checking procedure and after 

the bath, he would call her into his bedroom and take lotion 

and while she’s still fully naked apply it to her breasts and 

her buttocks.

You’ll also meet [Appellant’s] other two daughters, [N.C.] 

and [E.C.]. They’re going to tell you the exact same thing 

about this bathing and checking procedure and how if they 

didn’t comply with these rules, they’d get in trouble. They’d 

be on punishment.

Now, [E.C.] will also tell you that [Appellant] did some other 

things [that] made her uncomfortable. She’ll tell you that 

sometimes her dad would say things that made her feel that 

way, made her feel uneasy. She remembers one time 

where [Appellant] would make a comment like, I’m a man. 

What do you think all you girls going around here teasing 

me like this? She remembers another time saying, hey dad, 
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“[y]ou look really nice today” and he responded to her, 

“what are you going to do about it?”

And she’ll even tell you one day she was about 16. She was 

home sick from school. She’s [lying] in bed and watching 

TV and [Appellant] comes in to check on her. First, he 

asked her, hey[, how] are you feeling? He starts rubbing 

her back. He [lies] down behind her in the bed so that his 

chest is to her back and they’re pressed up against one 

another and she’ll tell you she could actually feel his erect 

penis against her buttocks. And he reached around and 

started to rub her chest, stomach and reached down over 

the vaginal area over the clothes, when he got up, got out 

of the bed, walked out of the room and left.

N.T. Opening Statements, 6/19/13, at 4-8 (some internal capitalization 

omitted).

With respect to Complainant Niece, the ADA declared during her 

opening statement:

You’re going to meet [Complainant Niece], too. 

[Complainant Niece] is [Appellant’s] and [Appellant’s wife’s] 

niece and when she was 15 years old, that summer she 

went to live with [Appellant] and his wife. . . . She’s going 

to tell you in very vivid detail what happened to her when 

she was living with this family. She’s going to tell you how 

one morning she woke up and her eyes weren’t open yet 

but she could feel the sun coming through the window on 

her face.

She remembers exactly what she was wearing. She 

remembers that she was [lying] face down on her stomach 

and [Appellant] came in the room. At this point nobody 

else was home in the household. Mom was at work. Two 

kids [] at their [grandmother’s], one was [at] choir practice. 

So it’s just [Complainant Niece] and [Appellant] alone in the 

house. And he sits down next to her. Initially innocent. 

Starts to rub her back and he says, hey, did you sleep well? 

Did you get a good night’s sleep? He continues to rub her 

back. Then he starts to rub her butt. She’s still on her 

stomach. He takes her by the waist and pulls her to the 
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edge of the bed and he pulls down his underwear – her 

underwear, excuse me, and he forces his penis inside her. 

And she’s lying there and she is in shock. This is basically 

dad to her, too.

And after he was finished, she [lay] there and she’s shaking 

and she’s in shock. She doesn’t know what to do. And she 

tells her cousins later on, you know, from now on while I’m 

sleeping in the morning, if I’m sleeping, wake me up. I’ll 

come with you to choir practice. Just wake me up. Don’t 

let me keep sleeping. But she doesn’t tell them. She 

doesn’t put into words what their dad just did to her. So 

her cousins don’t realize why she wants to be woken up, so 

they forget.

So the very next morning she’s sleeping again. Again, [one 

of Appellant’s daughter’s] is at choir practice. The two 

youngest girls are at grandmom’s house. It’s just 

[Complainant Niece] and [Appellant] alone in the house. 

And this time he wakes her up. This time he pulls down his 

pants and exposes his penis. He takes her head and forces 

it down to his penis. He won’t let up. He’s forcing it down, 

forcing it down. She’s trying to get away. He’s able to 

[get] his penis inside her mouth past her lips when she’s 

clenching her teeth. She’s clenching them and clenching 

them trying to prevent his penis from getting any further in 

her mouth. 

When he was finishing having his way with her that time, 

she runs up the street to the church where [] her cousin[] is 

finishing choir practice. She’s sobbing and [her cousin] 

looks at her and says, what’s wrong? What happened to 

you? What’s going on? She can’t bring herself to put into 

words what happened.

And so when they go home and [Appellant’s wife] comes 

home, she can’t bring herself to tell [Appellant’s wife] what 

her husband did to her. And so she tells [Appellant’s wife], 

you know what? I don’t want to live here anymore. Send 

me somewhere else. Send me anywhere else. Send me to 

DHS. [Complainant Niece] is going to tell you she would 

have rather lived in the system and lived anywhere else 

than to spend another moment with [Appellant].
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N.T. Opening Statements, 6/19/13, at 8-10 (some internal capitalization 

omitted).

The ADA concluded her opening statement by summarizing the crimes 

asserted against Appellant:

[W]ith respect to [Complainant Niece], the crimes are rape 

for the allegation that he forced his penis inside her vagina. 

Involuntary deviate sexual intercourse, which is just a long 

term for oral sex, because he forced his penis in her mouth, 

along with sexual assault and unlawful contact with a minor.

For [Complainant Daughter,] he’s charged with indecent 

assault of a child under 13, endangering the welfare of a 

child and unlawful contact with a minor.

Now, even though you don’t have to render a verdict with 

respect to [N.C.] and [E.C.], you will hear from them as 

well. And you’ll hear from them and you’ll hear their 

testimony as a way to help you understand [Appellant’s] 

intent, his motive, his [M.O.], his plan and that will help you 

understand what life was like for these girls and the way 

that [Appellant] acted.

Id. at 11.

During the evidentiary portion of the trial, the Commonwealth 

presented the testimony of Complainant Daughter and her sisters, N.C. and 

E.C. Further, Complainant Daughter and her sisters testified consistently 

with the ADA’s representation of their testimony, as made in the ADA’s 

opening statement. See N.T. Trial, 6/20/13, at 13-17, 22-24, 31, and 34 

(regarding N.C.’s testimony); N.T. Trial, 6/20/13, at 43-47 and 51-52 

(regarding E.C.’s testimony); and, N.T. Trial, 6/20/13, at 85-89, 91-97, and 

107 (regarding Complainant Daughter’s testimony). 
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During Appellant’s cross-examination of Complainant Daughter and her 

sisters, Appellant’s counsel postulated that Appellant’s bathing ritual and his 

actions in that regard were done not to arose sexual desire in Appellant, but 

were done for purely “hygienic” reasons – where Appellant was merely 

“checking [his daughters] to make sure [they] were clean.” See, e.g., N.T. 

Trial, 6/20/13, at 34-35, 57-58, and 98. In furtherance of this defense, 

Appellant’s counsel brought forth testimony from Complainant Daughter or 

her sisters that: during the bathing ritual, Appellant was always clothed; 

Appellant never said anything of a sexual nature during the bathing ritual; 

Appellant’s actions were not secret and the bathing ritual occurred while his 

wife and guests were present in the house; and, while the ritual was 

occurring, all three sisters believed that the purpose of the ritual was simply 

“to make sure [they] were clean.” See, e.g., N.T. Trial, 6/20/13, at 26, 

31-32, and 34-35 (regarding N.C.’s testimony); N.T. Trial, 6/20/13, at 58, 

59, and 60 (regarding E.C.’s testimony); N.T. Trial, 6/20/13, at 97 and 98 

(regarding Complainant Daughter’s testimony). 

At the beginning of the third day of trial, the ADA informed Appellant 

and the trial court that she was “not going to be able to proceed with” the 

case related to Complainant Niece.1 N.T. Trial, 6/21/13, at 4. Appellant 

____________________________________________

1 After the trial court granted Appellant’s motion for judgment of acquittal, 

the ADA informed the trial court that she was prepared to call a witness who 

would testify that Complainant Niece could not testify at trial because “she’s 

suffering from severe panic attacks, the emotional distress, that she just 

(Footnote Continued Next Page)
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then moved for, and the trial court granted, a judgment of acquittal on the 

charges related to Complainant Niece. Id. at 4-5. Afterwards, Appellant, 

the ADA, and the trial court spoke about how to inform the jury that it would 

not be hearing any evidence relating to Complainant Niece. The 

conversation proceeded as follows:

[ADA McNabb]: I would ask or ask the Court how we want 

to handle it with the jury. Should we just tell them they’re 

not to consider anything relating to her?

[Trial Court]: Well, I mean, they don’t have any evidence 

with regard to her. So they will be instructed that as to the 

charges and the only complainant they’re dealing with at 

this point in time is the other complainant.

[ADA McNabb]: Okay.

[Appellant’s Counsel]: And, Your Honor, in my closing may I 

address the issue of what she argued she was going to 

present and that she has not presented because that was 

part of my opening. Not to belabor the issue but I’m just –

[ADA McNabb]: I think with respect to [Complainant 

Daughter] if she feels – if counsel feels I have not met my 

burden, that’s fair game. But without me being able to put 

on evidence as to why she’s not testifying from the rest of 

her family, it’s a little unfair to say she can’t prove it. You 

know the jury is left wondering and speculating. 

(Footnote Continued) _______________________

can’t relive it, that she’s terrified of testifying again.” N.T. Trial, 6/21/13, at 

13-14; see also N.T. Sentencing, 10/1/13, at 23 (“I would just remind the 

[trial c]ourt that we started out with mandatory minimums and we started 

out with felony in the first degree. And the reason we could not proceed 

with those charges was because of the dramatic effect those crimes had on 

[Complainant Niece]. She had a panic attack so bad that we couldn't even 

proceed with her testimony”).
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I think the best way to handle it is to instruct them that 

you’re not to wonder or speculate or concentrating on 

the evidence you didn’t hear.

[Appellant’s Counsel]: Well, can I say this? I’m not making 

reference to the particular complainant. I’m making 

reference to her arguments that she made in her opening 

with regards to you’re going to hear this home wasn’t safe. 

There was penetration. They didn’t hear any of that. That’s 

my argument. I’m not going to make reference to this 

particular complainant. But to some of the arguments that 

she made to the jury what she promised to deliver that she 

has not delivered I would like to be able to address.

[Trial Court]: Let me think about it.

Id. at 5-6.

The trial court ruled that, during closing argument, Appellant’s counsel 

was permitted to “comment in general on the Commonwealth’s failure to 

meet its burden but we’re not going to get into the specifics.” Id. at 17. 

Further, as is evident from the above, Appellant’s counsel did not request a 

mistrial or a specific curative instruction related to the Commonwealth’s 

opening statement, where the ADA spoke about Appellant’s alleged rape and 

involuntary deviate sexual intercourse of Complainant Niece. See id. at 5-6.

The trial court did not specifically instruct the jury on anything related 

to what the ADA declared, in her opening statement, as to Complainant 

Niece. However, during the trial court’s charge to the jury, the trial court 

again informed the jury that the verdict must be based upon the evidence 

presented and not upon the statements or arguments of counsel. See, e.g., 

id. at 21-22. 
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During Appellant’s closing argument, Appellant’s counsel reminded the

jury that – in contravention of the ADA’s opening statement – the 

Commonwealth had failed to present any evidence related to Complainant 

Niece. Appellant’s counsel argued to the jury:

As you recall, when I spoke to you in my opening, I 

indicated to you what the Commonwealth said to you was 

not in evidence. I also told you to keep an open mind 

because I indicated to you that everything the 

Commonwealth said to you would have to be proven by the 

witnesses who took the stand. 

You've heard all the evidence. Do you recall in the 

Commonwealth's opening where she described how these 

children you were going to hear they were feeling unsafe at 

home. You were going to hear about this rape, this 

penetration and all of these things. That's what the 

Commonwealth told you she was going to prove to you. 

What she proved to you was what you heard on the witness 

stand. Nothing that she said to you in her opening is 

admitted into evidence. You are the fact finders and that's 

why I asked you at the beginning of this case to keep an 

open mind, because clearly her opening arguments to you 

had much more than what she brought to you in this 

courtroom. So I'm now going to talk to you about the 

evidence that she brought to you in this courtroom because 

that's the only thing that you are to consider when you go 

back to deliberate. It's not what she said. It's not what I 

said. It's what the witnesses said. You are the fact finders. 

You have to make the determination what happened in this 

case. So let's talk about the [] evidence now that you [] 

have the evidence. . . .

Appellant’s Closing Argument, 6/21/13, at 5-6.
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The jury found Appellant guilty of indecent assault of a child less than 

13 years of age, endangering the welfare of a child, and unlawful contact 

with a minor.2 On October 1, 2013, the trial court sentenced Appellant to 

serve an aggregate term of 40 months to ten years in prison, followed by 

seven years of probation, for his convictions. N.T. Sentencing, 10/1/13, at 

36-37. Appellant did not file a direct appeal from his judgment of sentence. 

On July 31, 2014, Appellant filed a timely, pro se PCRA petition. The 

PCRA court appointed counsel to represent Appellant during the proceedings 

and, on March 14, 2016, counsel filed an amended PCRA petition on 

Appellant’s behalf. See Amended PCRA Petition, 3/14/16, at 1-3. Within 

the amended petition, Appellant claimed that trial counsel was ineffective for 

failing to “move for a mistrial or other instruction from the judge,” after the 

Commonwealth informed the trial court that it could not proceed on the 

charges related to Complainant Niece and after the trial court granted 

Appellant’s motion for a judgment of acquittal on those charges. Id. at 3. 

Specifically, Appellant declared:

the trial in question involved the joinder of two separate 

cases . . . involving two separate complainants 

([Complainant Daughter and Complainant Niece]). During 

opening statements, the prosecutor made detailed 

allegations about an indecent assault alleged to have been 

committed against [Complainant Daughter] and an alleged 

rape committed against [Complainant Niece]. [Complainant 

Niece] never testified at trial and the Commonwealth never 

____________________________________________

2 18 Pa.C.S.A. §§ 3126(a)(7), 4304(a), and 6318(a)(1), respectively.
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offered any evidence about this offense. As a result, a 

judgment of acquittal was ultimately granted as to [the 

charges related to Complainant Niece]. Notwithstanding the 

jury’s receipt of extremely prejudicial information, trial 

counsel did not move for a mistrial or other instruction 

from the judge. As a result, there are serious doubts that 

[Appellant] actually received a fair trial.

Id.

On June 10, 2016, the PCRA court provided Appellant with notice that 

it intended to dismiss the PCRA petition in 20 days, without holding a 

hearing. See PCRA Court Order, 6/10/16, at 1; Pa.R.Crim.P. 907(1). The 

PCRA court finally dismissed Appellant’s PCRA petition on July 13, 2016 and 

Appellant filed a timely notice of appeal. Appellant raises two claims on 

appeal:

1. Whether the PCRA court erred when it dismissed 

[Appellant’s] petition without first holding an evidentiary 

hearing on the factual dispute(s) noted by the 

Commonwealth in its motion to dismiss?

2. Whether the PCRA court erred when it dismissed 

[Appellant’s] petition as meritless where [Appellant] raised 

a meritorious claim of ineffective assistance of counsel in 

connection with his attorney’s election against moving for a 

mistrial after the jury heard extensive opening remarks 

pertaining to an unsubstantiated rape and the 

Commonwealth failed to offer any evidence of the same 

during trial?

Appellant’s Brief at 8 (some internal capitalization omitted).

To be eligible for relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 
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enumerated circumstances is the “[i]neffectiveness 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

Counsel is, however, presumed to be effective and “the burden of 

demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v. 

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden, 

Appellant must plead and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not 

have some reasonable basis designed to effectuate his 

interests; and, (3) but for counsel’s ineffectiveness, there is 

a reasonable probability that the outcome of the challenged 

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court 

has explained:

A claim has arguable merit where the factual averments, if 

accurate, could establish cause for relief. See 

Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) 

(“if a petitioner raises allegations, which, even if accepted 

as true, do not establish the underlying claim . . . , he or 

she will have failed to establish the arguable merit prong 

related to the claim”). Whether the facts rise to the level of 

arguable merit is a legal determination.

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 
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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.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some 

internal quotations and citations omitted). “A failure to satisfy any prong of 

the test for ineffectiveness will require rejection of the claim.” Id.

Moreover, we note that a PCRA petitioner is not automatically entitled 

to an evidentiary hearing on his petition. Specifically, a PCRA petition may 

be dismissed without a hearing if the PCRA court “is satisfied from [its 

review of the petition] that there are no genuine issues concerning any 

material fact and that the [petitioner] is not entitled to post-conviction 

collateral relief, and no purpose would be served by any further 

proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA petition raises 

material issues of fact, the PCRA court “shall order a hearing.” Pa.R.Crim.P. 

908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision to dismiss 

a petition without a hearing, an appellant must show that he raised a 

genuine issue of fact which, if resolved in his favor, would have entitled him 

to relief, or that the court otherwise abused its discretion in denying a 

hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) 

(internal quotations and citations omitted).
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On appeal, Appellant claims that the PCRA court erred when it 

dismissed his petition without holding a hearing. According to Appellant, 

there is a genuine issue of material fact that his trial counsel was ineffective 

for failing to request a mistrial after it was discovered that – in contravention 

of the ADA’s declarations in her opening statement – Complainant Niece 

refused to testify and the Commonwealth presented no evidence related to 

the alleged rape or involuntary deviate sexual intercourse of Complainant 

Niece.3 We disagree with Appellant.

“A trial court may grant a mistrial only where the incident upon which 

the motion is based is of such a nature that its unavoidable effect is to 

deprive the defendant of a fair trial by preventing the jury from weighing 

and rendering a true verdict.” Commonwealth v. Bryant, 67 A.3d 716, 

728 (Pa. 2013) (internal citations and corrections omitted). “A mistrial is an 

extreme remedy that is required only where the challenged event deprived 

the accused of a fair and impartial trial.” Commonwealth v. Smith, 131 

A.3d 467, 474–475 (Pa. 2015) (internal quotations and citations omitted).

As our Supreme Court has held:

____________________________________________

3 Within Appellant’s brief to this Court, Appellant argues only that counsel 

was ineffective for failing to request a mistrial. See Appellant’s Brief at 8-

40. Therefore, Appellant has waived any claim that counsel was ineffective 

for failing to request a curative instruction. Commonwealth v. Spotz, 716 

A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme Court] has held 

that an issue will be deemed to be waived when an appellant fails to 

properly explain or develop it in his brief”).
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Remarks in a prosecutor's opening statement must be fair 

deductions from the evidence which [s]he in good faith 

plans to introduce and not mere assertions designed to 

inflame the passions of the jury. The prosecution is not, 

however, required to prove conclusively all statements 

made during the opening [statement]. As long as there is a 

good faith and reasonable basis to believe that a certain fact 

will be established, reference may properly be made to it 

during the opening [statement]. Even if an opening 

[statement] is improper, relief will be granted only where 

the unavoidable effect is to so prejudice the finders of fact 

as to render them incapable of objective judgment.

Commonwealth v. Jones, 610 A.2d 931, 938-939 (Pa. 1992). 

In this case, Appellant admits that, when the ADA gave her opening 

statement, the ADA had a good faith belief that she would call Complainant 

Niece as a witness at trial and that Complainant Niece would testify 

consistently with the ADA’s representations, as made in the opening 

statement. See Appellant’s Brief at 21 n.4 and 27 n.5. Therefore, to the 

extent Appellant bases his ineffective assistance claim upon an allegation of 

prosecutorial misconduct, Appellant’s ineffective assistance claim fails, as 

the underlying claim lacks arguable merit. Jones, 876 A.2d at 385 (“if a 

petitioner raises allegations, which, even if accepted as true, do not establish 

the underlying claim . . . , he or she will have failed to establish the arguable 

merit prong related to the claim”).

Nonetheless, Appellant claims on appeal that – even though the ADA 

acted in good faith during her opening statement – counsel was still 

ineffective for failing to request a mistrial when Complainant Niece refused 

to testify and a judgment of acquittal was entered on the charges relating to 
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Complainant Niece. Appellant claims that the “subsequent, unforeseen 

events” that occurred in this case necessitated a mistrial because “the jury 

heard the [ADA] describe the lurid details of an alleged rape during [her] 

opening statement” and, yet, “[n]o witness was presented to establish these 

allegations during trial.” Appellant’s Brief at 21. According to Appellant, 

when the jury heard about the alleged rape he committed against 

Complainant Niece, the jury was prejudiced against him in regard to the 

charges related to Complainant Daughter – and in regard to his defense that 

the bathing ritual was not sexual, but was merely hygienic in nature. 

“Courts are hesitant to grant a motion for a mistrial when the conduct 

complained of was not the product of the court, counsel, or the parties.” 

Commonwealth v. Metzer, 634 A.2d 228, 232 (Pa. Super. 1993) (internal 

quotations and citations omitted). Nevertheless, we recognize that “some 

remarks [] in an opening or closing statement could be so prejudicial that a 

finding of error, or even constitutional error, would be unavoidable.” 

Frazier v. Cupp, 394 U.S. 731, 736 (1969). For example, in 

Commonwealth v. Wilson, 402 A.2d 1027 (Pa. 1979), the defendant was 

on trial for murder and, during the opening statements, the Commonwealth 

“told the jury of [the defendant’s] incriminating statements following his 

arrest and quoted from the [defendant’s] written [confession].” Id. at 1028. 

However, the Commonwealth did not introduce the defendant’s confession 

into evidence during the jury trial. Id.
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On appeal, the defendant claimed that the reference to the confession 

during opening statements deprived him of a fair trial. Id. The 

Commonwealth countered by arguing that “the assistant district attorney 

was acting in good faith during his opening presentation to the jury and 

intended as of that moment to make evidentiary use of [the defendant’s] 

confession, but changed his mind as the trial progressed.” Id. at 1029 

(internal quotations omitted). The Pennsylvania Supreme Court agreed with 

the defendant and held that, even if the Commonwealth acted in good faith 

during the opening statement, the Commonwealth’s reference to the 

confession during opening statements deprived the defendant of a fair trial 

and, thus, entitled the defendant to a new trial. Id. The Wilson Court 

explained:

If a confession is introduced into evidence at trial, the 

accused has the right to cross-examine those who verify it 

as to the circumstances and contents. He may also 

question its accuracy and even deny making it. Here, [the 

defendant] was denied the opportunity of making any 

inquiry as to the confession, its contents or circumstances 

even though the jury was effectively made aware that he 

had confessed and that he had “signed a written confession, 

signed it on each and every page of the confession, and his 

father signed the confession at the end.” Additionally, the 

jury was told by the assistant district attorney that [the 

defendant] had lied and tried to mislead the police as to the 

gun. All of this was without support in the record.

The most devastating evidence against one accused of 

crime is a confession or admission of guilt. This case is no 

exception. Even instructions such as were given here by 

the court to the jury cautioning that they should dismiss the 

statement from “your mind” and let it not “enter into your 

deliberations” could not erase the impact of having the jury 
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know [the defendant] had confessed. Any person 

conversant with the mental process of a jury in determining 

the guilt or innocence of an accused would be hard put to 

honestly deny this.

The Commonwealth urges that the assistant district 

attorney was acting in good faith during his opening 

presentation to the jury and intended as of that moment to 

make evidentiary use of [the defendant’s] “confession,” but 

changed his mind as the trial progressed. Suffice it to say, 

the good faith of the prosecuting official does not lessen the 

prejudice suffered by [the defendant].

Id. at 1029.

From this Court’s research, Wilson is unique in Pennsylvania 

jurisprudence – it is the only case, that we have found, where a district 

attorney’s good faith reference to a matter in an opening statement 

necessitated a mistrial, when the district attorney later failed to introduce 

the stated evidence at trial.4 Further, we believe that the lack of precedent 

supporting Appellant’s position is for good reason. In short, it is the 

combination of the fact that: the trial court routinely and repeatedly 

instructs the jury that opening statements are not evidence; the trial court 

also instructs the jury that its verdict must be based upon the evidence 

presented and not upon the statements or arguments of counsel; under our 

precedent, “[t]he jury is presumed to have followed the [trial] court’s 

instructions;”5 and, as the United States Supreme Court has explained, 

____________________________________________

4 Appellant has cited to no such case; indeed, within Appellant’s brief to this 

Court, Appellant did not even cite to or discuss Wilson.

5 Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010).
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“[m]any things might happen during the course of the trial which would 

prevent the presentation of all the evidence described in advance. . . . [N]ot 

every variance between the advance description and the actual presentation 

constitutes reversible error, when a proper limiting instruction has been 

given.” Frazier, 394 U.S. at 736. Simply stated, Wilson stands apart 

because, in Wilson, the district attorney read the defendant’s own 

confession to the jury during opening statements – and, as the Supreme 

Court explained, the “most devastating evidence against one accused of 

crime is a confession or admission of guilt.” Wilson, 402 A.2d at 1029.

Indeed, in Frazier, the defendant was on trial for murder and the 

prosecution expected to call the defendant’s co-conspirator, Jerry Lee Rawls, 

to testify against the defendant at trial. Frazier, 394 U.S. at 733. As the 

Supreme Court explained:

after the trial began the prosecutor included in his opening 

statement a summary of the testimony he expected to 

receive from Rawls. The summary was not emphasized in 

any particular way; it took only a few minutes to recite and 

was sandwiched between a summary of [the defendant’s] 

own confession and a description of the circumstantial 

evidence the State would introduce. At one point the 

prosecutor referred to a paper he was holding in his hands 

to refresh his memory about something Rawls had said. 

Although the State admitted in argument here that the jury 

might fairly have believed that the prosecutor was referring 

to Rawls' statement, he did not explicitly tell the jury that 

this paper was Rawls' confession, nor did he purport to read 

directly from it.

Id. at 733-734. 
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During trial, Rawls was called as a witness and he informed the trial 

court that he intended to assert his privilege against self-incrimination to 

every question concerning his activities on the day of the murder. Rawls 

was then dismissed from the witness stand. Id. at 734.

Before the United States Supreme Court, the defendant claimed that 

the prosecutor’s reference to Rawls’ confession during opening statements 

deprived him of a fair trial. The Supreme Court disagreed and held:

it is clear that this case is quite different from either 

Douglas [v. Alabama, 380 U.S. 415 (1965)] or Bruton [v. 

United States, 391 U.S. 123 (1968)]. In Douglas, the 

prosecutor called the defendant’s coconspirator to the stand 

and read his alleged confession to him; the coconspirator 

was required to assert his privilege against 

self-incrimination repeatedly as the prosecutor asked him to 

confirm or deny each statement. The [Supreme] Court 

found that this procedure placed powerfully incriminating 

evidence before the jury in a manner which effectively 

denied the right of cross-examination. Here, Rawls was on 

the stand for a very short time and only a paraphrase of the 

statement was placed before the jury. This was done not 

during the trial, while the person making the statement was 

on the stand, but in an opening statement. In addition, the 

jury was told that the opening statement should not be 

considered as evidence. Certainly the impact of the 

procedure used here was much less damaging than was the 

case in Douglas. And unlike the situation in Bruton, the 

jury was not being asked to perform the mental gymnastics 

of considering an incriminating statement against only one 

of two defendants in a joint trial. Moreover, unlike the 

situation in either Douglas or Bruton, Rawls' statement 

was not a vitally important part of the prosecution's case.

We believe that in these circumstances the limiting 

instructions given were sufficient to protect petitioner's 

constitutional rights. As the [Supreme] Court said in 

Bruton, “Not every admission of inadmissible hearsay or 
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other evidence can be considered to be reversible error 

unavoidable through limiting instructions; instances occur in 

almost every trial where inadmissible evidence creeps in, 

usually inadvertently.” It may be that some remarks 

included in an opening or closing statement could be so 

prejudicial that a finding of error, or even constitutional 

error, would be unavoidable. But here we have no more 

than an objective summary of evidence which the 

prosecutor reasonably expected to produce. Many things 

might happen during the course of the trial which would 

prevent the presentation of all the evidence described in 

advance. Certainly not every variance between the advance 

description and the actual presentation constitutes 

reversible error, when a proper limiting instruction has been 

given. Even if it is unreasonable to assume that a jury can 

disregard a coconspirator's statement when introduced 

against one of two joint defendants, it does not seem at all 

remarkable to assume that the jury will ordinarily be able to 

limit its consideration to the evidence introduced during the 

trial. At least where the anticipated, and unproduced, 

evidence is not touted to the jury as a crucial part of the 

prosecution’s case, it is hard for us to imagine that the 

minds of the jurors would be so influenced by such 

incidental statements during this long trial that they would 

not appraise the evidence objectively and dispassionately. 

Id. at 735-736 (some internal quotations and citations omitted) (internal 

footnote omitted).

In the case at bar, it is uncontradicted that: the ADA acted in good 

faith when, during her opening statement, she described Appellant’s alleged 

rape and involuntary deviate sexual intercourse of Complainant Niece; 

through no fault of “the court, counsel, or the parties,” the Commonwealth 

was prevented from introducing the evidence related to Complainant Niece;6

____________________________________________

6 See Metzer, 634 A.2d at 232.
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Appellant was granted a judgment of acquittal on the charges related to 

Complainant Niece; the allegations and statements related to Complainant 

Niece were confined to the ADA’s opening statement and were never heard 

again during trial or during the Commonwealth’s closing arguments; and, 

the trial court repeatedly instructed the jury that opening statements are not 

evidence and that the jury’s verdict must be based upon the evidence 

presented and not upon the statements or arguments of counsel. Moreover, 

we note that the allegations related to Complainant Niece were “not touted 

to the jury as a crucial part of the prosecution’s case” against Appellant as to 

the charges that actually went to the jury – those with respect to 

Complainant Daughter. 

Under these facts, we conclude that Appellant was not entitled to a 

mistrial after it was discovered that the Commonwealth could not proceed on 

the charges related to Complainant Niece. Appellant’s trial – though not 

perfect – was not unfair. Commonwealth v. Robinson, 877 A.2d 433, 443 

(Pa. 2005) (“[a]ppellant is entitled to a fair trial, not a perfect trial”); 

Frazier, 394 U.S. at 735 (“[n]ot every admission of inadmissible hearsay or 

other evidence can be considered to be reversible error unavoidable through 

limiting instructions; instances occur in almost every trial where inadmissible 

evidence creeps in, usually inadvertently”) (internal quotations and citations 

omitted). Appellant’s ineffective assistance of counsel claim thus lacks 
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arguable merit. As such, we conclude that the PCRA court did not err when 

it dismissed Appellant’s PCRA petition without holding a hearing.7 

Order affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/20/2017

____________________________________________

7 We have concluded that the PCRA court did not err when it dismissed 

Appellant’s petition without holding a hearing. Therefore, Appellant’s second 

numbered claim on appeal (wherein he claims that he is entitled to postconviction collateral relief as a matter of law) fails.