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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JASON BUCHANAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1105 MDA 2022

Appeal from the PCRA Order Entered July 18, 2022

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0000751-2018

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED: MAY 1, 2023

Jason Buchanan appeals from the order denying his petition for relief 

filed pursuant to the Post Conviction Relief Act (“PCRA”), see 42 Pa.C.S.A. §§ 

9541-9546. In this appeal, Buchanan alleges four errors by trial counsel, 

which he believes constituted ineffective assistance. We conclude Buchanan’s 

claims do not entitle him to relief and affirm the PCRA court’s order.

In 2017, Buchanan’s minor stepdaughter (“Complainant”) reported that 

Buchanan repeatedly sexually abused her when she was between the ages of 

8 and 15. A jury convicted Buchanan of rape of a child, statutory sexual assault

– child under 16 years of age and defendant 11 or more years older, sexual 

assault, aggravated indecent assault of a child, aggravated indecent assault –

child less than 16 years of age and defendant 4 or more years older, indecent 

assault – child less than 13 years of age, indecent assault – child less than 16 
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years of age and defendant 4 or more years older, unlawful contact with a 

minor, and corruption of minors.1 The trial court imposed an aggregate 

sentence of 336 to 672 months in prison, which included a 60- to 120-month 

sentence for Buchanan’s conviction of aggravated indecent assault – child less 

than 16 years of age and defendant 4 or more years older. After granting 

Buchanan partial post-trial relief, the trial court amended that aggravated 

indecent assault sentence to 36 to 72 months in prison. This Court affirmed 

Buchanan’s judgment of sentence. See Commonwealth v. Buchanan, 251 

A.3d 1229, 858 MDA 2020 (Pa. Super. Mar. 12, 2021) (unpublished 

memorandum).

On December 1, 2021, Buchanan filed the instant, timely PCRA petition

alleging ineffective assistance of counsel. The PCRA court held a hearing at 

which trial counsel testified. On July 18, 2022, the PCRA court denied 

Buchanan’s PCRA petition. This timely appeal followed.

Buchanan now raises the following issues for our review:

1. Whether trial counsel was ineffective for failing to object to 

statements made by the prosecutor during closing argument that 

the defense presented lies to the jury and opined that she 

personally believed [Complainant] was telling the truth and the 

defense was lying[,] since those statements constitute 

prosecutorial misconduct under binding Pennsylvania Supreme 

Court precedent?

2. Whether trial counsel was ineffective for failing to object to 

multiple compound and argumentative questions from the 

____________________________________________

1 See 18 Pa.C.S.A. §§ 3121(c), 3122.1(b), 3124.1, 3125(a)(8) and (b), 

3126(a)(7) and (a)(8), 6318(a)(1), 6301(a)(1)(ii).
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prosecutor during the cross-examination of [Complainant’s 

mother] and for failing to object to the prosecutor repeatedly 

cutting off the witness without providing a full and fair opportunity 

to answer?

3. Whether trial counsel was ineffective for failing to make a 

motion to strike Roberta Fratzola’s expert opinion that children 

never lie about sexual abuse from the record since this opinion 

was not responsive to any question asked and was tantamount to 

expert testimony that [Complainant] was telling the truth?

4. Whether trial counsel was ineffective for withdrawing his motion 

to pierce the Rape Shield Law when an expert for the 

Commonwealth testified that [Complainant] had sexual 

intercourse and the only evidence admitted at trial that 

[Complainant] had sexual intercourse was [Complainant’s] 

testimony that she was sexually assaulted by [] Buchanan?

Appellant’s Brief at 4-5 (issues renumbered; some capitalization omitted).

Our standard of review regarding a PCRA court’s order “is whether the 

determination of the PCRA court is supported by the evidence of record and is 

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super. 

2017). “The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Garcia, 

23 A.3d 1059, 1061 (Pa. Super. 2011) (citation omitted).

Counsel is presumed to be effective, and the burden is on Buchanan to 

prove otherwise. See Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 

2013). To succeed on an ineffectiveness claim, Buchanan must demonstrate 

by a preponderance of the evidence that “(1) the underlying claim has 

arguable merit; (2) counsel had no reasonable basis for his or her action or 

inaction; and (3) the petitioner suffered prejudice as a result of counsel’s 
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action or inaction.” Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)

(citation omitted). A failure to satisfy any prong of the ineffectiveness test will 

require rejection of the claim. See Commonwealth v. Montalvo, 244 A.3d 

359, 368 (Pa. 2021).

First, Buchanan argues trial counsel was ineffective for failing to object 

to certain statements made by the prosecutor during closing arguments. See

Appellant’s Brief at 20. According to Buchanan, the prosecutor provided her 

personal opinions “that the defense explanations made no sense, [] that she 

personally looked at the physical evidence and believe[d] the [Complainant], 

and [] that she personally knew the jury would return a verdict of guilty 

because the [Complainant] told the truth.” Id. at 22.2

To succeed on an ineffectiveness claim based on trial counsel’s failure 

to object to alleged prosecutorial misconduct, a petitioner must establish that 

the prosecutor’s conduct resulted in the denial of petitioner’s constitutional or 

statutory rights or otherwise denied the petitioner due process. See 

____________________________________________

2

In support of his position, Buchanan cites our Supreme Court’s decision in 

Commonwealth v. Kuebler, 399 A.2d 116 (Pa. 1979), which involved 

statements made by the prosecuting attorney during a murder trial. The 

prosecuting attorney summarized the appellant’s testimony during closing 

arguments and stated, “I submit to you, members of the Jury, that [the 

appellant] is not right, and everything that she said from that stand, and in 

every major respect concerning this case was a big lie.” Kuebler, 399 A.2d 

at 117. Our Supreme Court reversed the appellant’s judgment of sentence 

and remanded for a new trial because the prosecutor “sought to intrude upon 

the jury’s exclusive province of judging credibility[.]” Id. at 119. The Court 

further concluded that the statement “unequivocally communicate[d]” the 

prosecutor’s personal credibility assessment. Id.
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Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012) (citation omitted).

“It is well-established that comments by a prosecutor constitute reversible 

error only where their unavoidable effect is to prejudice the jury, forming in 

the jurors’ minds a fixed bias and hostility toward the defendant such that 

they could not weigh the evidence objectively and render a fair verdict.” 

Commonwealth v. Arrington, 86 A.3d 831, 853 (Pa. 2014) (citation, 

internal quotation marks, and brackets omitted).

Moreover,

[a] prosecutor must have reasonable latitude in fairly presenting 

a case to the jury and must be free to present his or her 

arguments with logical force and vigor. The prosecutor is also 

permitted to respond to defense arguments. Finally, in order to 

evaluate whether the comments were improper, we do not look at 

the comments in a vacuum; rather we must look at them in the 

context in which they were made.

Commonwealth v. Charleston, 94 A.3d 1012, 1024 (Pa. Super. 2014) 

(citation omitted); see also Commonwealth v. Reid, 259 A.3d 395, 429 

(Pa. 2021) (“Even an otherwise improper comment may be appropriate if it is 

in fair response to defense counsel’s remarks.” (citation omitted)). Regarding 

closing arguments, “a prosecutor may comment on the evidence and any 

reasonable inferences arising from the evidence.” Arrington, 86 A.3d at 853 

(citation omitted).

Recently, in Reid, our Supreme Court identified the following test:

[A] prosecutor commits misconduct by improperly bolstering the 

credibility of a Commonwealth witness when the following two 

factors are met: (1) the prosecutor must assure the jury the 

testimony of the government witness is credible, and (2) this 
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assurance must be based on either the prosecutor’s personal 

knowledge or other information not contained in the record.

Reid, 259 A.3d at 429 (citation and internal quotation marks omitted).

Applying this test, the Reid Court held that a prosecutor’s statement that 

certain Commonwealth witnesses “told the truth” did not rise to the level of 

prosecutorial misconduct. See id. at 430. Although the statement could be 

interpreted as an assurance that the witnesses’ testimony was credible, there 

was no suggestion that the assurances reflected the prosecutor’s personal 

knowledge or otherwise arose from non-record sources. See id. Additionally, 

the Court concluded that defense counsel’s closing arguments attempted to 

impugn the credibility of Commonwealth’s witnesses and therefore opened the 

door for the prosecutor to respond. See id.

Here, the PCRA court applied our Supreme Court’s decision in Reid and 

concluded that trial counsel was not ineffective for failing to object to the 

prosecutor’s statements. The PCRA court conceded that the prosecutor’s 

statements arguably assured the jury Complainant’s testimony was credible. 

See PCRA Court Opinion, 7/18/22, at 12 (unnumbered). However, the court 

noted that the prosecutor’s arguments were explicitly based on the physical 

evidence presented at the trial. See id. (citing N.T. (Trial), 11/1/19, at 364); 

see also id. (stating that Buchanan failed to demonstrate that the 

prosecutor’s comments reflected her personal knowledge or other non-record 

evidence).
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In the alternative, the PCRA court concluded that the prosecutor’s 

argument was a reasonable response to issues highlighted in trial counsel’s 

closing argument. Trial counsel argued that Complainant’s testimony was 

“unbelievable.” See id. at 337; see also id. at 343 (“Forget about belief 

beyond a reasonable doubt, any belief whatsoever.”). Trial counsel described 

the defense witnesses as “straightforward and honest.” Id. at 339. The PCRA 

court found these statements, as well as the defense’s general trial strategy 

to insinuate the Commonwealth’s case was smoke and mirrors, opened the 

door for response by the prosecutor. See PCRA Court Opinion, 7/18/22, at 

12-13 (unnumbered).

Finally, the PCRA court highlighted its instructions to the jury, which 

reiterated the jury’s role as the judges of witness credibility and instructed the 

jury that counsel’s arguments do not constitute evidence. See id. at 13 (citing 

N.T. (Trial), 11/1/19, at 367-68, 371).

On review, we conclude the PCRA court’s findings are supported by the 

record. Its application of the law, including our Supreme Court’s decision in 

Reid, is legally sound. We are also unable to conclude that the prosecutor’s 

comments had the unavoidable effect of instilling in the jury a bias against 

Buchanan such that the jury could not objectively weigh the evidence. 

Therefore, Buchanan’s underlying claim lacks merit, and he is not entitled to 

relief on this issue.
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In his second claim, Buchanan contends trial counsel was ineffective for 

failing to object to statements made by the prosecutor during Complainant’s 

mother’s (“Mother”) testimony. See Appellant’s Brief at 39. According to 

Buchanan, the prosecutor was argumentative and combative, and refused to 

allow Mother to answer questions. See id. Buchanan claims the prosecutor’s 

“objectionable conduct” damaged Mother’s credibility. See id. at 41.

The PCRA court concluded that technical objections to the prosecutor’s 

statements would have been frivolous because “[t]he [p]rosecutor could easily 

have split up compound questions and rephrased inappropriate questions, all 

while allowing the jury to hear the questions and testimony multiple times.” 

PCRA Court Opinion, 7/18/22, at 8. The court also determined that trial 

counsel had a reasonable basis for failing to object to some of the 

argumentative questions. See id.

The record reflects that trial counsel did lodge objections during portions 

of Mother’s cross-examination. During the PCRA hearing, trial counsel testified 

regarding his strategy for not objecting more frequently:

[O]ur strategy was that we had nothing to hide in this case, and I 

believe I did object more than I normally do to the cross 

examination of [Mother], and I was trying not to object to every 

single question, trying not to object over and over again. I knew 

I had a right to redirect her and allow her to finish her answers 

and rehabilitate a lot of the damage the prosecution may have 

done during cross examination.

N.T. (PCRA), 5/27/22, at 16-17. Counsel opined that the Commonwealth’s 

suggestion, i.e., that Mother helped cover up sexual abuse because she and 
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Buchanan had been fighting, was not believable. See id. at 17. Accordingly, 

the record supports the PCRA court’s finding that counsel’s alleged inaction 

was based on a reasonable trial strategy. See Commonwealth v. Spotz, 84 

A.3d 294, 311-12 (Pa. 2014) (“Where matters of strategy and tactics are 

concerned, a finding that a chosen strategy lacked a reasonable basis is not 

warranted unless it can be concluded that an alternative not chosen offered a 

potential for success substantially greater than the course actually pursued.” 

(citation, internal quotation marks, and brackets omitted)). We conclude 

Buchanan is not entitled to relief on this claim.

In his third claim, Buchanan argues trial counsel was ineffective for 

failing to object to certain testimony provided by Roberta Fratzola, a licensed 

professional counselor, who was introduced at trial as an expert in the field of 

dynamics and sexual abuse of children and delayed reporting. Buchanan 

specifically directs our attention to the following testimony by Fratzola:

Well, children – let’s put it this way. I only had one child that 

recanted. They don’t lie. Children don’t lie about sexual abuse, 

horrific things that happened to them. They might lie and say 

when I was a teenager I told my mother a lie that I was going 

with friends and instead I went with my boyfriend because I wasn’t 

allowed to date, okay. So we do lie about little things. We do fib. 

But how many of you tried alcohol when you were 15 years old 

and never told your parents that that happened? But they don’t 

tell lies about horrific things that happened to them, traumatic 

things like sexual abuse. I only had one child again, sir, who 

recanted. I believe the abuse happened, but she recanted because 

it put her in a bad position of her mother crying and having to 

leave their home and putting the family in disarray. I have yet to 

have a child who has lied to me in all the years I’ve been working.
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Appellant’s Brief at 29 (citing N.T. (Trial), 10/30/19, at 194-95). According to 

Buchanan, Fratzola’s statement was not responsive to counsel’s question

about factors to consider in determining the truthfulness of someone alleging 

sexual abuse. See id. at 28-29. Buchanan suggests Fratzola’s testimony

amounted to an opinion that Complainant was telling the truth about the 

sexual assaults. See id. at 31. Buchanan claims that counsel should have 

moved to strike the statement. See id. at 30-31.3

Expert testimony may be admitted if the witness has specialized 

knowledge beyond that possessed by an average layperson; this knowledge

is helpful for the fact finder to understand the evidence or demonstrate a 

material fact; and the expert’s methodology is generally accepted within the 

relevant field. See Pa.R.E. 702. However, because credibility determinations 

are reserved to the fact finder, expert witnesses may not provide an opinion 

about the credibility of other witnesses. See Commonwealth v. 

Maconeghy, 171 A.3d 707, 712 (Pa. 2017).

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3 Buchanan also presents an alternative argument that trial counsel should 

have cross examined Fratzola using portions of a book Fratzola authored, 

which Buchanan believes contradict Fratzola’s testimony. We conclude he has 

waived this alternative argument. “No question will be considered unless it is 

stated in the statement of questions involved or is fairly suggested thereby.” 

Pa.R.A.P. 2116(a). Here, Buchanan’s issue presented only explicitly identifies 

counsel’s failure to move to strike Fratzola’s testimony. See Appellant’s Brief 

at 4. Further, a failure to cross-examine Fratzola using the book is a distinct 

issue from the failure to move to strike the testimony. The second is not fairly 

suggested by the first.
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Here, following a hearing, the PCRA court reviewed the challenged 

portion of testimony and determined Fratzola did not render an opinion about 

Complainant’s veracity. See PCRA Court Opinion, 7/18/22, at 9

(unnumbered). The PCRA court concluded that, instead, Fratzola’s testimony 

suggested “there are no factors when determining whether a child is lying....” 

Id. Additionally, the PCRA court concluded that even if the jury interpreted 

Fratzola’s statements as an opinion on the veracity of Complainant, any harm 

was de minimis given the overwhelming credible evidence against Buchanan. 

See id.

The PCRA court’s determination is supported by the record. Fratzola did 

not refer to Complainant, nor did she render a specific opinion about 

Complainant’s credibility. Rather, the challenged portion of testimony includes 

general statements about Fratzola’s professional experiences dealing with 

child sexual assault victims. Therefore, Buchanan’s underlying claim lacks 

merit, and he is not entitled to relief on his second issue.

In his final claim, Buchanan contends trial counsel was ineffective for 

withdrawing the defense motion to pierce the Rape Shield Law and for 

otherwise failing to present evidence that Complainant had sexual intercourse 

with any individuals other than Buchanan. See Appellant’s Brief at 33.

Buchanan argues that trial counsel could have submitted evidence of 

Complainant’s sexual encounters with her minor boyfriend, Z.P. See id. at 34.
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According to Buchanan, such evidence was “narrowly tailored” to contradict 

testimony by the Commonwealth’s expert witness. See id. at 35-36.

Pennsylvania’s Rape Shield Law limits the admissibility of an alleged 

victim’s prior sexual conduct:

Evidence of specific instances of the alleged victim’s past sexual 

conduct, past sexual victimization, allegations of past sexual 

victimization, opinion evidence of the alleged victim’s past sexual 

conduct, and reputation evidence of the alleged victim’s past 

sexual conduct shall not be admissible in prosecutions of any 

offense listed in subsection (c) [which includes, relevantly, 

Chapter 31 (pertaining to sexual offenses) and Section 6301 

(corruption of minors)] except evidence of the alleged victim’s 

past sexual conduct with the defendant where consent of the 

alleged victim is at issue and such evidence is otherwise 

admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a).

The Rape Shield Law is intended to “prevent a trial from shifting its focus 

from the culpability of the accused toward the virtue and chastity of the victim. 

Moreover, the Rape Shield Law is intended to exclude irrelevant and abusive 

inquiries regarding prior sexual conduct of sexual assault complainants.” 

Commonwealth v. Jerdon, 229 A.3d 278, 285 (Pa. Super. 2019) (citations, 

quotation marks and brackets omitted). When applying the Rape Shield Law, 

“past sexual conduct” has been interpreted to include a complainant’s sexual 

history at any time prior to trial. See Commonwealth v. Jones, 826 A.2d 

900, 908 (Pa. Super. 2003) (en banc).

However, evidence of a complainant’s sexual conduct with a third party 

may be admissible in certain limited circumstances. See Commonwealth v. 
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Largaespada, 184 A.3d 1002, 1007 (Pa. Super. 2018) (recognizing 

exceptions to the Rape Shield Law for “evidence that negates directly the act 

of intercourse with which a defendant is charged, evidence demonstrating a 

witness’ bias, or evidence that attacks credibility.” (citation omitted)). Such 

evidence must be probative of whether the defendant committed the alleged 

conduct. See id. at 908-09. When a defendant seeks to introduce evidence 

that may be barred by the Rape Shield Law, a court must conduct an in camera

hearing and balance several factors. See Jerdon, 229 A.3d at 286-86.

“[E]vidence of a claimant’s sexual history may be admissible if the evidence 

is relevant to exculpate the accused, more probative than prejudicial, and noncumulative in nature.” Id. at 286 (citation omitted).

The record reflects that prior to trial, Buchanan filed a motion in limine

to allow evidence that Complainant also engaged in sexual intercourse with 

Z.P. beginning in approximately August 2017. See Motion in Limine, 7/19/19.

Buchanan argued this evidence was relevant to challenge Complainant’s 

credibility and offer a possible motive, in light of the Commonwealth’s 

evidence that Complainant became pregnant in August 2017 and had an 

abortion in October 2017. See id. After the in camera hearing, Buchanan 

withdrew the motion.

Trial counsel testified at the PCRA hearing about his trial strategy. Trial 

counsel testified that, initially, he wanted to introduce Z.P. as a witness

because the Commonwealth’s expert would testify that Complainant had 
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previously had sexual intercourse and offering Z.P.’s statements would point 

to someone other than Buchanan. See N.T. (PCRA), 5/27/22, at 9-10. 

However, trial counsel recognized that the case would ultimately depend upon 

the jury’s respective credibility determinations:

[I]t was going to come back to a question of credibility between 

[Buchanan] and [Complainant]. That was our trial strategy from 

the very beginning.

And [Complainant’s] testimony, the statements that she 

had given prior to trial ... seemed incredible, and we were 

concerned – I was concerned that, first of all, I didn’t think we 

were going to win the motion [to] pierce the Rape Shield Law. 

That was the impression I had.

Second of all, if we did win it then there was going to be an 

avalanche of evidence coming in, including relating to the

pregnancy, the attempt at the abortion, the miscarriage. And 

given the fact that [Z.P. and Complainant] both said that they had 

only had sex twice, that they used a condom both times, I thought 

that a jury – there was more of a chance of all of this testimony 

hurting [Buchanan] than helping him, let’s put it that way.

Even if the trial [j]udge allowed the piercing of the Rape 

Shield Law and even if we got in everything we wanted to get in, 

it came down to a question of did he, in fact, do it? And if he did 

it, none of this really matters if the jury believed [Complainant].

So my strategy – and I talked this over with [Buchanan] –

was to try to keep it as simple as possible. ...

Id. at 12-13; see also id. at 14 (“I thought our strategy would be to keep it 

simple and hope they believed [Buchanan] over [Complainant].”). Further, 

trial counsel testified that, regarding information about Complainant’s 

pregnancy, “there was no evidence to indicate that it wasn’t [Buchanan’s] or 

that it was somebody else’s.” Id. at 13. In light of the overall trial strategy to 
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establish Buchanan never touched Complainant, trial counsel also expressed 

concern that introducing evidence of Complainant’s sexual encounters with 

Z.P. would “look like we were trying to cover up what happened.” Id. at 13-

14.

The PCRA court concluded that trial counsel had a reasonable basis for 

withdrawing the motion to pierce the Rape Shield Law. See PCRA Court 

Opinion, 7/18/22, at 7 (unnumbered). After reviewing counsel’s testimony

regarding his trial strategy, we agree. The record confirms that trial counsel 

fully considered the evidence against Buchanan and the potential that the 

proffered evidence would hurt Buchanan’s defense. Buchanan fails to establish 

that admitting evidence of Z.P. would have resulted in a substantially higher 

chance of success at trial. See Spotz, 84 A.3d at 311-12. Therefore, 

Buchanan is not entitled to relief on this claim.

Based upon the foregoing, we affirm the PCRA court’s order denying 

Buchanan’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/01/2023
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