J-S43006-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOEL MERCED-CASTELLA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1882 WDA 2019

Appeal from the Order Dated November 25, 2019

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0008639-2015

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 18, 2021

Appellant, Joel Merced-Castella, appeals from the November 25, 2019 

order denying, in part, his petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we affirm. 

The trial court set forth the following factual history:

Briefly, the evidence presented at trial established that 

when [K.K. (“Victim”)] was 11 years old, [Victim’s] mother 

married [Appellant] and he moved in to their apartment in Moon 

Township and when she was 13, the family moved to Midland 

Township in Beaver County. Beginning when she was 11, 

[Appellant] would come into her bedroom and ask her if she 

wanted to see his penis. When she said no, he would repeatedly 

ask her until she assented and then he would pull down his pants. 

This continued, with [Appellant] eventually asking her to touch 

and rub his penis and eventually to perform oral sex on multiple 

occasions, when she was on school break or when she came home 

after school. [Victim] also testified that when the family moved 

to Midland, her mother and [Appellant] had mounted a video 

camera in the upstairs hallway above the bathroom door which 

recorded and stored video from her bedroom door and her 
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brother’s bedroom door. The camera was observed by Detective 

Lonkert of the Moon Township Police Department, who was 

concerned that it was focused on [Victim’s] bedroom door which 

did not close completely.

On cross-examination, defense counsel elicited testimony 

from [Victim] that she was required to stay in her room and that 

when she disobeyed the family’s many rules, she was punished by 

being forced to stare at a wall or exercise or would be deprived of 

food. She testified that she was unhappy having so many rules 

and that she felt she was being treated differently from her 

friends.

Trial Court Opinion, 11/30/16, at 2-3.

The trial court set forth the following procedural history:

Following a jury trial held before this [c]ourt on January 13 

and 14, 2016, [Appellant] was found guilty of all charges. He 

appeared before this [c]ourt on April 5, 2016 and was sentenced 

to consecutive terms of imprisonment of 10–20 years each at the 

[Involuntary Deviate Sexual Intercourse] with a Child and 

Unlawful Contact with a Minor charges and three and one half 

(31⁄2) to seven (7) years at the Corruption of Minors charge, for 

an aggregate 231⁄2 to 47 years. Additionally, following a hearing 

on May 3, 2016, [Appellant] was found to be a Sexually Violent 

Predator. Timely post-sentence motions were filed and were 

denied on June 22, 2016. 

Trial Court Opinion, 11/30/16, at 1–2 (footnotes omitted). Appellant filed a 

timely appeal arguing that his sentence constituted an abuse of the sentencing 

court’s discretion and the verdict was contrary to the weight of the evidence. 

On appeal, this Court affirmed the judgment of sentence. Commonwealth 

v. Merced-Castella, 179 A.3d 563, 1071 WDA 2016 (Pa. Super. filed October 

13, 2017) (unpublished memorandum). Appellant filed a timely pro se PCRA 
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petition, his first, on October 19, 2018.1 Counsel was appointed on 

November 29, 2018, and following several extensions, Appellant filed an 

amended PCRA petition on March 27, 2019. Amended PCRA Petition, 3/27/19. 

The PCRA court held an evidentiary hearing on November 25, 2019, and 

granted relief on one of Appellant’s issues that required resentencing due to 

an issue with a defective jury instruction, which is not before us. Order of 

Sentence–PCRA Resentencing, 11/25/19. The PCRA court denied the 

remainder of the relief requested in Appellant’s PCRA petition. Appellant filed 

a timely notice of appeal on December 20, 2019. On January 3, 2020, the 

PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) statement within 

twenty-one days of the order, and Appellant filed his statement on January 24, 

2020. The trial court did not file a Rule 1925(a) opinion.

Appellant presents the following question for our review:

Whether the trial court erred in partially denying [Appellant’s] 

amended PCRA petition, by not finding and ruling that 

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1

In order to be timely, a PCRA petition must filed within one year of the date 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The judgment 

of sentence “becomes final at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking direct 

review.” 42 Pa.C.S. § 9545(b)(3). Appellant did not file an appeal from the 

Superior Court’s October 13, 2017 memorandum, and Appellant’s judgment 

of sentence became final thirty days later, on November 12, 2017. Pa.R.A.P. 

903. Thus, Appellant had until November 12, 2018, to file his petition.
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[Appellant’s] trial counsel was ineffective for failing to call C.V.[2]

and [M.K.][3] as witnesses?

Appellant’s Brief at 4.

We apply the following standard and scope of review when reviewing 

the propriety of a denial of a PCRA petition:

“An appellate court reviews the PCRA court’s findings to see if they 

are supported by the record and free from legal error. The court’s 

scope of review is limited to the findings of the PCRA court viewed 

in the light most favorable to the prevailing party.”

Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa. Super. 

2009)(quoting Commonwealth v. Hammond, 953 A.2d 554, 

556 (Pa. Super. 2008)(citation omitted). “Because most PCRA 

appeals involve questions of fact and law, we employ a mixed 

standard of review. We defer to the PCRA court’s factual findings

and credibility determinations supported by the record. In 

contrast, we review the PCRA court’s legal conclusions de novo.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. 

Super. 2015) (citations omitted).

Commonwealth v. Sarvey, 199 A.3d 436, 445-446 (Pa. Super. 2018)

When reviewing a claim of ineffective assistance of counsel, we apply 

the following tenets and test:

Counsel is presumed effective, and to rebut that presumption, the 

PCRA petitioner must demonstrate that counsel’s performance 

was deficient and that such deficiency prejudiced him. In 

Pennsylvania, we have refined the Strickland [v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]

performance and prejudice test into a three-part inquiry. Thus, to 

prove counsel ineffective, the petitioner must show that: (1) his 

underlying claim is of arguable merit; (2) counsel had no 

reasonable basis for his action or inaction; and (3) the petitioner 

suffered actual prejudice as a result. See [Commonwealth v.] 

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2 C. V. is Victim’s brother. N.T. (PCRA), 11/25/19, at 29, 31.

3 M.K. is Victim’s grandmother. N.T. (PCRA) 11/25/19, at 18. 
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Pierce[, 515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. If a petitioner 

fails to prove any of these prongs, his claim fails. Generally, 

counsel’s assistance is deemed constitutionally effective if he 

chose a particular course of conduct that had some reasonable 

basis designed to effectuate his client’s interests. 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. To 

demonstrate prejudice, the petitioner must show that there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceedings would have been different. A 

reasonable probability is a probability that is sufficient to 

undermine confidence in the outcome of the proceeding.

Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 

2014) (internal brackets and some internal citations omitted). Further, “[a] 

court is not required to analyze the elements of an ineffectiveness claim in 

any particular order of priority; instead, if a claim fails under any necessary 

element of the ineffectiveness test, the court may proceed to that element 

first.” Commonwealth v. Tharp, 101 A.3d 736, 747 (2014) (citation 

omitted). We also note that to prevail on an ineffectiveness claim for failure 

to call a witness, Appellant must show: 

(1) that the witness existed; (2) that the witness was available; 

(3) that counsel was informed of the existence of the witness or 

should have known of the witness’s existence; (4) that the witness 

was prepared to cooperate and would have testified on appellant’s 

behalf; and (5) that the absence of the testimony prejudiced the 

appellant.

Commonwealth v. Brown, 767 A.2d 576, 581-582 (Pa. Super. 2001). 

“Thus, trial counsel will not be found ineffective for failing to investigate or 

call a witness unless there is some showing by the appellant that the witness’s 
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testimony would have been helpful to the defense.” Id. at 582 (citing 

Commonwealth v. Auker, 681 A.2d 1395 (Pa. 1996)).

In support of his appeal, Appellant first argues that the PCRA court 

erred when it determined that counsel was not ineffective for failing to call 

C.V. to testify regarding his observations made in the home. Appellant’s Brief 

at 13-14. He alleges that, pursuant to the testimony C.V. gave during the 

PCRA hearing held on November 25, 2019, C.V. would have rebutted Victim’s 

testimony that he and Victim were locked in their room and deprived of food. 

Id. at 15. C.V. also would have testified that Victim made threats toward her 

mother and Appellant “when she did not get what she wanted,” and that he 

did not witness any inappropriate or sexual behavior between Appellant and 

Victim. Id. Finally, Appellant avers that C.V. would have testified that he 

was not interviewed by Appellant’s attorney and was not given an opportunity 

to testify, but he would have done so if he had been given the opportunity. 

Id. 

Appellant then argues that C.V.’s testimony from the PRCA hearing 

established the five prongs set forth in Brown, 767 A.2d at 581-582, 

discussed above. A review of defense counsel’s testimony and C.V.’s 

testimony before the PCRA court established that C.V. existed, that 

Appellant’s attorney was aware of the testimony C.V. would give, and that 

C.V. was prepared to testify on Appellant’s behalf. However, even assuming 

the first prongs in Brown were satisfied, Appellant must prove prejudice. To 
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prove prejudice in the context of an ineffectiveness-of-counsel claim for 

failure to call a witness, “a defendant must establish prejudice by 

demonstrating that he was denied a fair trial because of the absence of the 

testimony of the proposed witness.” Commonwealth v. Khalil, 806 A.2d 

415, 422 (Pa. Super. 2002). “Moreover, prejudice in the context of ineffective

assistance of counsel means demonstrating that there is a reasonable 

probability that, but for counsel’s error, the outcome of the proceeding would 

have been different.” Commonwealth v. Spotz, 896 A.2d 1191, 1226 (Pa. 

2006). “Absent a demonstration of prejudice, a PCRA petitioner cannot 

prevail on a claim for ineffective assistance of counsel....” Id. Appellant’s 

bald statement that “the absence of the witness’[s] testimony on the critical 

issue in the case–the veracity of the accuser–prejudiced [Appellant]” does 

not establish prejudice nor does it show that absent counsel’s alleged error, 

the outcome of the proceeding would have been different. Appellant’s Brief 

at 15-16. Boilerplate allegations of ineffectiveness are not sufficient to satisfy 

Appellant’s burden. Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 

2008). Indeed, counsel is presumed effective and Appellant bears the burden 

of showing prejudice, which Appellant has failed to do. See Commonwealth 

v. Cooper, 941 A.2d 655, 664 (Pa. 2007). Appellant has failed to show he 

was prejudiced by counsel’s failure to call C.V. as a witness; thus, Appellant’s 

claim of ineffective assistance of counsel fails. 
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Moreover, although Appellant avers that trial counsel had “no 

reasonable, strategic basis” for failing to call C.V., that statement is belied by 

the record.

4

 Specifically, Appellant’s trial counsel testified that he was aware 

that C.V. gave a prior statement to Deborah Burr of Beaver County Children 

and Youth Services, and that statement was inconsistent with his proposed 

testimony. N.T. (PCRA), 11/25/19, at 8-9. Counsel knew of the inconsistent 

statement and the fact that Ms. Burr was present at the trial; therefore,

counsel believed Ms. Burr would have been called to rebut the testimony from 

C.V., which would have been damaging to Appellant’s case. Id. at 15. 

Counsel testified that he would have called C.V. if he believed C.V.’s

testimony would have been helpful and credible. Id. at 9. Given all of the 

above and the fact that C.V. was eleven years old at the time of trial and 

would be subject to cross-examination, Appellant and trial counsel discussed 

the issue and decided against calling C.V. Id. at 8, 14. Defense counsel

articulated that counsel did not call C.V. as a witness because he did not 

believe C.V.’s testimony would be credible, and could have negatively 

impacted the trial. N.T. (PCRA), 11/25/19, at 8. Thus, to the extent 

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4 Additionally, as the trial court noted during the PCRA hearing, it is unclear 

that C.V., who was between seven and nine years old during the relevant 

periods, would have been competent, and therefore available to testify. Thus, 

his availability for purposes of trial is not established. N.T. (PCRA), 11/25/19, 

at 53-54.
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Appellant argues trial counsel had no strategic basis for not calling C.V., 

Appellant has failed to make the required showing. 5

Appellant also argues that trial counsel was ineffective for failing to call 

M.K. Appellant’s Brief at 16. During the PCRA hearing, M.K. testified that 

she often babysat Victim, that Victim had a history of threatening her mother 

and Appellant when she did not get what wanted, and that after her forensic 

interview, Victim told M.K. that she would be a fantastic actress one day. Id. 

at 8. M.K. would have further testified that she never saw anything 

inappropriate happen between Appellant and Victim. Id. at 8-9. Appellant 

argues that M.K would have testified “regarding [Victim’s] recantation of her 

allegations of rape.” Id. at 16. This is a misstatement of M.K.’s anticipated 

testimony. As the PCRA court noted during the hearing: 

When I first heard the testimony, the proposed testimony even 

characterized as a recantation, what I expected was that the little 

girl said, “I just went in and lied to everybody at the forensic 

interview.” I didn’t hear that at all. I heard a little girl that was 

shown some attention remarking perhaps on the fact that she’s 

good at speaking in front of people. And maybe for that reason 

she is going to be an actress some day.

It calls for rampant speculation. 

N.T. (PCRA), 11/25/19, at 58. 

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5 We note that defense counsel’s credibility determinations regarding C.V. 

were echoed by the PCRA court. During the hearing, the PCRA court also 

observed that C.V. appeared “very nervous, very shifty” on the witness stand 

and the court found C.V.’s responses to be evasive. N.T. (PCRA), 11/25/19,

at 55. Based on the foregoing, the PCRA court found that C.V.’s testimony 

would not have been beneficial to Appellant, and that trial counsel was not 

ineffective for failing to call him to testify. Id. at 54-56. 
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Also, during the PCRA hearing, defense counsel testified that he did not 

call M.K. to the stand because the bulk of her testimony related to Victim’s 

mental health and emotional issues, which he believed were not admissible. 

N.T. (PCRA), 11/25/19, at 16. Counsel further testified that he believed 

M.K.’s testimony would have been duplicative of that given by Victim’s 

mother, which established that the witness did not believe Victim was telling 

the truth, that Victim had issues at home, and that there were inconsistencies 

in Victim’s story. Id. at 17. 

As with C.V., Appellant again offers conclusory statements regarding 

prejudice and trial counsel’s rationale for not calling M.K. Specifically, 

Appellant states that “[t]he sum of all of this is that trial counsel’s failure to 

call [M.K.] had no reasonable, strategic basis, and [Appellant] was prejudiced 

insofar as trial counsel failed to present potentially exculpatory and highly 

relevant evidence to the jury.” Appellant’s Brief at 17. As discussed supra, 

Appellant bears the burden of proving each element of his ineffectiveassistance-of-counsel claim; his bald allegation of prejudice is not sufficient. 

Appellant has failed to show how he was prejudiced by trial counsel’s failure 

to call C.V. and M.K.; thus, the PCRA court did not err when it denied 

Appellant’s ineffectiveness-of-counsel claims in Appellant’s PCRA petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2021