J - A21023 - 17

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. PAUL R. GRAHAM, JR., Appellant No. 1194 WDA 2016

Appeal from the PCRA Order July 21 , 2016 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP - 63 - CR - 0001468 - 2012 BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J. MEMORANDUM BY OLSON, J.: FILED OCTOBER 12, 2017 Appellant, Paul R. Graham, Jr., appeals pro se from the order entered on July 21, 2016, dismissing Appellant’s petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 - 9546. We affirm. In a prior memorandum, this Court summarized the underlying facts of this case, as w ell as some of the procedural posture. We explained:

Appellant was charged with, inter alia , rape, four counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, three counts of statutory sexual assault, three counts of indecent assault, and two counts of corruption of the morals of minors. The charges arose from allegations he molested his then nine - year - old niece (“the victim”) between 2003 and 2005. The trial court summarized the trial evidence as follows: A two - da y jury trial began on September 16, 2013. . . . At trial, the Commonwealth offered the testimony of the victim, her mother, and the arresting officer.J - A21023 - 17

- 2 - At the time of trial, the victim was [19] years old. [Appellant] married the victim’s aunt when the vi ctim was approximately nine years old. The victim’s and Appellant’s families were close, and [Appellant] acted as the victim’s babysitter while her parents worked. [Appellant] babysat the victim and her brother “pretty much every day.” Sometimes she wou ld stay the night at [Appellant’s] residence and he would assist her with getting ready for school the next morning. The victim enjoyed spending time with her uncle, because he would play games with her and “pretty much did whatever [the victim] wanted to do all the time.” However, in February [] 2003, when the victim was nine years old, [Appellant] began to sexually abuse the child. While wrestling, the victim stuck her tongue out at [Appellant], and he warned her not to do it again. When she did, [Appellant] licked the inside of the victim’s mouth and her tongue. In another episode, [Appellant] stuck his fingers in the victim’s mouth and made her suck on them. He also made the victim lift up her shirt while he touched and licked her nipples. Sim ilar events happened multiple times. [Appellant’s] family eventually moved into the victim’s prior home, while the victim and her family resided three blocks away. The victim was close to ten years old at the time. The two residences were in walking di stance to each other, and [Appellant] continued to babysit the victim. The two often spent time in [Appellant’s] bedroom. The victim testified that Appellant once removed two vibrators from a dresser drawer. He placed them on the victim’s legs and expla ined that it was supposed to make her feel good. He then removed the victim’s pants and rubbed the objects between her vagina and pushed them on her clitoris. When asked if the objects penetrated her vagina, the victim responded, “they went in between th e lips.” [Appellant] would regularly remove the victim’s pants. In one episode he made the victim sit on top of his face and then placed his tongue in her vagina. Once,J - A21023 - 17

- 3 - [Appellant] made the victim bend over on all fours while he removed her pants. He then placed his finger into the victim’s anus. The act was extremely painful for the victim, who pulled away and ran to the bathroom. The victim was frightened when the event caused a “mucousy” discharge. [Appellant] laughed and told the victim that it would be “okay.” [Appellant] also forced the victim to perform oral sex on him. The victim recalled gagging and pulling away. These sexual assaults occurred almost every time the victim was at [Appellant’s] residence. On another occasion, [Appellant] made the victim [lie] down on the bed, while he put his penis in between her thighs and then ejaculated. [Appellant’s] semen contacted the victim’s pants and thighs. Once, while sitting by the pool, [Appellant] placed his fingers in the victim’s vagina. The victim recalled occasions where [she] and Appellant would be sitting on the couch while he would touch her vagina above her clothes or pinch her nipples. The victim also testified that on one occasion [Appellant] removed the victim’s pants, forced he r to lie on the bed, and placed his penis between the lips of her vagina. [Appellant] ejaculated on the victim’s legs and vagina. [Appellant] once inserted his penis into the victim’s anus. The victim was subjected to extreme pain and stated that it “fe lt like I had been ripped.” She ran to the bathroom and observed spots of blood on the toilet paper used to wipe the area. Because of the continuous systemic abuse, the victim testified that the acts were “kind of like a normal thing, like I was kind of used to it by then. [Appellant] always told me if I would ever tell anybody, he would go to jail for a long time. He was like my best friend, so I didn’t really want him to leave.” The victim also explained that [Appellant] would tell her stories of his previous sexual encounters. She recalled that he once took her to a video rental business and rented a pornographic video tape. The victim waited in the vehicle, while [Appellant] “ran” into the store, acquired the tape, and then ran back to the vehicle . AtJ - A21023 - 17

- 4 - his residence, he and the victim watched the video. He provided wine to the victim and encouraged her to drink it, which she did on one occasion. He also provided cigarettes to the victim and encouraged her to smoke them. After a family dispute in 2005, [Appellant] and his family moved out of the residence when the victim was around [12] years old. Because the two families no longer interacted, the abuse ceased. The victim did not come forward at that time, because she did not want to cause more problems or fighting. However, the victim ultimately came forward with her abuse in the summer of 2012. She had spoken with a close friend who encouraged her to disclose the abuse. The victim was concerned, because her cousin had two young children, whi ch she believed resided in the same home as [Appellant]. With the encouragement from her friends, the victim told her mother. She later went to the Charleroi Police Department to report her abuse. The victim’s mother corroborated that between the years of 2003 and 2005 [she] and her husband had busy employment schedules and relied on [Appellant] and his wife to babysit their children. The victim had explained to her mother that she had been sexually assaulted for a period of time between the ages of nin e and [12] years old. During that time, the victim’s temper tantrums prompted mother and child to visit a medical doctor. Near the end of the two families’ relationship, the victim told her mother that she no longer wanted to go to [Appellant’s] home, bu t she did not expand on her reasons. The final witness was Detective Lieutenant Eric Porter. [Lieutenant] Porter had been a member of the Charleroi Police Department for over [15] years. The victim was interviewed by [Lieutenant] Porter and a criminal c omplaint was prepared. Due to the length of time between the abuse and its reporting, there was no attempt to collect any physical evidence by means of a rape kit or other physical medical examination. HeJ - A21023 - 17

- 5 - testified that it was common for minor children t o not come forward for a long period of time. [Trial Court Opinion, 6/6/14, at 2 - 5]. Appellant did not testify or present any exhibits or witnesses on his behalf. On September 17, 2013, the jury found Appellant guilty on all counts. Commonwealth v. Graham , 122 A.3d 1134 (Pa. Super. 2015) (unpublished memorandum) at 1 - 5 (internal footnotes omitted) (some internal quotations, citations, and corrections omitted). The trial court sentenced Appellant in December 2013. However, on June 16, 2015, this Cour t vacated Appellant’s judgment of sentence and remanded for resentencing. Id. at 16. The trial court resentenced Appellant on July 28, 2015; it ordered that Appellant serve an aggregate term of 46 to 92 years in prison for his convictions and register, fo r 15 years, in accordance with the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10 - 9799.41. Appellant did not file a direct appeal from his judgment of sentence. Instead, Appellant filed the current PCRA petition on Se ptember 24, 2015. Appellant raised numerous claims in his pro se PCRA petition, including: trial counsel was ineffective for failing to object to prosecutorial misconduct during the Commonwealth’s opening statement, where the Commonwealth made “improper remarks regarding the credibility of the complaining witness” and declared that Appellant “was a laborer” and had been “laid offJ - A21023 - 17

- 6 -

quite a bit;” trial counsel was ineffective for failing to object to prosecutorial misconduct during the Commonwealth’s closing argument, where the Commonwealth made remarks that were not supported by the evidence; trial counsel was ineffective for failing to investigate and prepare a defense; trial counsel was ineffective for failing to impeach the credibility of the complaining witness; and, prior counsel were ineffective for failing to challenge the sufficiency of Appellant’s rape conviction. Appellant’s Pro Se PCRA Petition, 9/24/15, at 1 - 18. The PCRA court appointed counsel to represent Appellant during the post - conviction pr oceedings. See Trial Court Order, 10/21/15, at 1. However, on January 21, 2016, appointed counsel filed a no - merit letter and a request to withdraw as counsel, pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley , 550 A. 2d 213 (Pa. Super. 1988) ( en banc ). After reviewing counsel’s Turner / Finley letter, and an objection filed by Appellant, the PCRA court entered an order that granted counsel’s petition to withdraw and notified Appellant that it intended to dismiss the PC RA petition in 20 days, without holding a hearing. See PCRA Court Order, 6/1/16, at 1; Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s PCRA petition on July 21, 2016. PCRA Court Order, 7/21/16, at 1 - 2. Appellant filed a timely notice o f appeal and now raises two claims to this Court:J - A21023 - 17

- 7 - [1.] Failure of trial counsel [to] investigate and prepare a defense. [2.] Failure of trial counsel to object to the prosecutor’s argument, remarks and alleged expert opinion during her opening statement and closing argument. Appellant’s Brief at 4 (some internal capitalization omitted). We have reviewed Appellant’s brief, 1 the relevant law, the certified record, the notes of testimony, and the opinion of the able PCRA court judge, President Judge Katherin e B. Emery. We conclude that President Judge Emery ’s opinion, entered on December 27, 2016, meticulously and accurately disposes of Appellant’s meritless claims on appeal. Therefore, we affirm on the basis of President Judge Emery’s thorough opinion and adopt it as our own. In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of President Judge Emery ’s opinion with the name of the victim redacted. 2

____________________________________________ 1 The Commonwealth did not file a brief in this case. 2 On August 14, 2017, Appellant filed, in this Court, a “Motion f or Relief Pursuant to Pa.R.A.P. 123 Request to Expand the Record Due to Newly Announced Rule of Law” (hereinafter “Appellant’s Motion for Relief”). Within Appellant’s Motion for Relief, Appellant cited the Pennsylvania Supreme Court’s recent opinion in Commonwealth v. Muniz , ___ A.3d ___, 2017 WL 3173066 (Pa. 2017), where the Supreme Court held that the registration requirements of SORNA constitute punishment for purposes of the federal and state constitutions. In accordance with Muniz , Appellant reques ted that this Court “vacate all portions of the sentence issued in this matter pertaining to SORNA registration and notification.” Appellant’s Motion for Relief, 8/14/17, at 1 (some internal capitalization omitted). (Footnote Continued Next Page)J - A21023 - 17

- 8 -

Appellant’s “Motion for Relief Pursuant to Pa.R.A .P. 123 Request to Expand the Record Due to Newly Announced Rule of Law” denied. Order affirmed. Jurisdiction relinquished.

(Footnote Continued)
_______________________ Since Muniz was not filed until July 19, 2017, Appellant (obviously) did not include the claim in his PCRA petition. Therefore, Appellant is not entitled to relief on his claim. See 42 Pa.C.S.A. § 9543(a) (“[t]o be eligible for relief under th[e PCRA], the petitioner must plead and prove b y a preponderance of the evidence all of the following. . .”) (emphasis added); Pa.R.A.P 302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”). Further, to the extent Appellant views his current mot ion as a subsequent PCRA petition, we note:

when an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sou ght, or upon the expiration of the time for seeking such review. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also be filed within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first “date the claim could have been presented.” 42 Pa.C.S . § 9545(b)(2). Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000) (internal footnote omitted).J - A21023 - 17

- 9 -

Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary

Date: 10/12/20171 1 18 P.a,C.:S, § 3 l2 l.(a)(6) (subsequently amended and renumbered 18 Pa.CS. § 3 l.2'1(c); effcctlve Feb. 7, 2003), 2 18 Pa.C.S. § 3l23(a)(6) (subsequently amended arid renumbered 18 Pa.C.S. § 3.12J(c), effective Feb, 7, 200.3} a 18 Pa.C.s. § 3i25(a).(7). ~· 1 

### s p, 

### c s· 1; 3·17.., 1 · .. . a,.·: . s --·: . 5 18 Pa;CS. § 3t26(a)P} " 18 Pa:C:S, ~ 630J (a)( l). statutory 

### sexual assault", three counts of 

### indecent assault', 

### and two 

### counts bf corruption of the morals 

### of minors." (Record 

## No. 15) Attorney Sally Frick (Frick) entered her appearance 

## on behalf of Graham on.January 17, 2013 and represented Graham at hisjury trial, (Record No. 20) and June 30, 2005. {Record No
.. 6) At trial; 

### the prosecution proceeded 

### on rape', four counts of involuntary deviate sexual intercourse/, two counts of aggravated indecent', three counts of ·-.-· .... ·- i:hr a period between Januaryl , 2003 alleged sexual abuse of his 

### niece,
..... __ . . .. 12, 2012 a criminal complaint was filed charging Graham with various offenses related to 

### The: relevant procedural 

### and factual background 

### can be summarizedas follows: On June 

### BACKGROUND Paul Graham appeals this Court's July 21, 2016 order denying relief under the PostConviction Relief Act (PCRA). This opinion is written pursuant to Rule l925(a) of the Pennsy 1vania Rules of Appellate Procedure
..

OPINION PURSUANT TO Pa. 

### R.A.P. 1925(a) PAUL 

### R. GRAHAM, JR,, 1468 

### of 2012 No. vs, .,~ ) ) ) ) ) 

### ) } Defendant. 

### COMMONWEAL TH OF PENN$YLV 

### ANIA, . ' . ···' .. ~~~· 

### To: District Attorney; Paul Graham by Certified Mail; File , .. -, ~~;: ,.,.,--1, .,.,.,.(··" ~ J, .~ : ·r: 'r':",. 

### r'""''
. ' IN THE COURT OF COMMON PLEAS OF ·WASHINGTON COUNTY, 

### PENN''.SYLVANIA ~ .. :,··

. . . . . ... . ..... " , •. ) :,

CRIMINAL DIVlSION
. . . '....'....
.. '..,; •' ' \ ;I ·, Circulated 09/14/2017 12:14 PM2

Graham appealed the denial of his PCRA on August 22, 2016. (Record Nos. 71 & 72). other relevant portions of' the record before denying the PORA Petition on July 

## 21, 2016. Withdraw on June 20, 2016.(Record No. 70), This Court reviewed Graham's Response 

### and a:11 on 

### May 3 l, 2016. {Record No. 6,9). Graham filed a Response to PCRA Counsel's Motion to Notice of Intent to Dismiss 

### PCRA Petition and 

### granted Attorney 

### Egers' Motion 

### to Withdrawal a 

### Motion 

### to Amend PCRApetition 

### on April I I, 2016; (Record No. 67 & 68); This Court filed a withdrawal as counsel. (Record No. 65). Graham filed an objection to 

### Attorney Egers' 

### "no merit" letter on February· 11., 2016 and a "no merit" letter finding each of Graham's PCRA claims meritless and motioned for 63 & 64). Attorney Egers was granted ari extension of time until January 2 I , 2016 when he filed (Record No. 62). Graham filed a 'PCRA on September 24, 2015 and this Court appointed Attorney 

### John Egers ('•Attorney Egers") to.review the PCRA and either file an Amended 

### PCRA.
or 

## a "no merit" Jetter within 60 

### days of the October 21,2015 appointment 

### Order. (Record Nos. crimes. (Record No. 61 ). After .remand, 

### Graham was resentenced again on July 28, 2015
.. sentence exceeded the sentences authorized by the statute in effect when Graham committed. the Court affirmed Graham's conviction but remanded for a. resentencing. finding that the Court's evidence and 

### error in sentencing on.April 3, 2014. OnJune 16, 2015, the Pennsylvania Superior 2014. (Record No. 49). Graham appealed his conviction for 

### sufficiency and weight of the a motion to 

### reconsider sentence 

### was granted and the Court 

### resentenced Graham on March 13; 

### sentence motions and any appeal. (Record No. 37)
.. The post-sentence motions were denied. but The Washington County Public Defender's was appointed to 

### represent Graham for postwas sentenced on December 16, 2013. (Record No. 36). 

### Graham was found guilty oh all counts on September 

### 17, 2013 

### following a two-day jury trial and



# - '.,. .) 7 Graham did not add any new categories of allegations against counsel for ineffective assistance but did provide more examples of prior inconsistent statements in his "objection to dismissal." l 177, 1184 (Pa. Super. 2012). This Court's July 21, 2016 Order denying Graham's PCRA did raising claims of ineffective
.. PCRA counsel as discussed in Commonwealth: v .. Rykard,55 A.3d had already been granted. Regardless, thisfiling shou]d be viewed as arr "objection to dismissal" Notice of Intention to Dismiss PCRA Petition" as. his. PCRA counsel's Motion 'to Withdrawal Consolidated Memorandum of Law. Graham should have 

### captioned this document "Response to oCPCRA counsel in his Response to PCR.A Counsel's Motion to Withdrawal 

### as Counsel with ineffective assistance of counsel on the part of his appointed PCRA counsel for+taking the easy way out" and filing a "no merit" letter. 7 

### Graham fleshed 

### out the claims of ineffective: assistance Graham filed an Amended PCRA which raised the above issues but also claimed 5) Failure of Appellate Counsel to challenge 

### the Jntroduction of the lone trial exhibit 

### 'over the objection of Trial Counsel. · 4) Failure of Trial and Appellate Counsel to raise an insufficiency of the evidence argument; and 3) Failure of 'rrial Counsel to Impeach with Prior lnconsistent Statements;

...... ~ _ . 2) Failure of Trial Counsel to Investigate and Prepare 

### a Defense: I) failure of Trial Counsel to object to.the prosecutor's argument, remarks, and alleged expert opinion during her opening statement and closing argument; . 9543(a)(2)(ii). Graham's claims in the PCRA can be summarized and categorized-as follows: violations .all stem from ineffective assistance of counsel as defined 

### by 42 Pa.C.S. 

### § the 

### United States Constitution." Graham's PCRA reveals that these alleged constitutional Appeal but described the issues to be raised on appeal in 

### his docketing statement as "Petitoned [sic] Appellant was denied due process oflaw guaranteed by the 5tli~ 6 1 '\and 14 1 h Amendments of Graham W~S. not instructed to. file 

## a Concise 

### Statement of 

### Matters Complained of on 

### ISSUES QN 

### APPEAL4

1377 (Pa. 1991 ). 

### accused so as 

## to hinder 

### an objective 

### weighing, of the evidence. 

### Com, v. Chester, 

### 587 A.2d 1.367, the.jury was to prejudice. the jury, forming in their minds fixed bias and hostility towards the Prosecutorial misconduct occurs when the unavoidable effect of the comments by aprosecutor to, 

### to amount to 

### prosecutorial .misoonduct 

### to meet the arguable 

### merit prong 

### under Steele. statements made by the Assistant District Attorney Kristen Klingerman (Klingerman) during her 

### remarks to the jury in opening statements and 

### closing arguments, These statements would 

### need 1. Trial Counsel jailed to. object to prosecutor 's argument; remarks, and. alleged expert opinion. during lier opening statement and closing argument. Graham argues Frick was ineffective based upon he!' failure to object to several different whether the othertwo prongs have been met. Steele, at 797. .the three prongs, his claim play be disposed of.on that basis alone - without determination of 972 A.2d 1196, 1203 (Pa. Super. 2009). Where it is clear that 

### he has failed to meet any one of presumed to he effective and Graham bears the. burden ofproving otherwise. Com. v. Harris, 

### as a result 

### of this action 

### or inaction. Com. 

### :v. Steele, 

### 961 A:2d 786. 797 

### (Pa. 2008). Counsel is 

### words - a reasonable probability that the 

### outcome of 

### the proceedings 

### would have been 

### different. not .have a reasonable basis for his. action .or inaction, and (3) he suffered prejudice, or in other· preponderance of the evidence that (I) the .underlying claim has. arguable merit, (2) counsel did

. . . . Pennsylvania jurisprudence: to succeed on such· a claim, Graham must plead and. p.rov:e by a The standard applicable to ineffective assistance of counsel claims is well established in L. Ineffective Assistance of Trial and Appellate 

### Counsel below. specifically address all. of the claims 

### in the underlying PCRA,. which 

### this Court 

### will now. do not address the. merits concerning ineffective assistance of' PCRA Counsel and did notsupport a claim. she made in her opening actually helps Graham because it can affect

meritorious .ineffecti ve assistance of co tinsel claim, Klingerman' s failure to bring in evidence to of Graham being laid off but not presenting evidence to support the. allegation. This is not a Frick 

### Was ineffective. because she should have objected to the prosecution raising the allegation bit." (N:T. P: 23.) The prosecution presented no evidence on this topic. Graham argues that Klingerman stated in her opening that .Graham Was "a laborer" who was "laid off quite a thus had a reasonable basis. for not objecting. coil text, the comments 

### made by Klingerman do not arise to prosecutorial misconduct and Frick had. believable testimony because it was consistent. In and that credibility -of
... frames the comments in his PCRA. Thejury was told they 

### would have 

### certain tools to judge the Klingerman did not simply tell the jury they must blindly believe the victim 

# as .Graham (N.T: p .. 148.) The testimony of ,, .. . was believable 

### and it was

believable because .it was true. It.was upsetting, its horrifying, its appalling, but it is all true .. And you know that ifs true. You know ifs true because it has been consistent. {N.T, p. 28.) Klingerman made similar remarks
.. in her 

### dosing argument:



## You will 

## be .given tools 

## to evaluate the credibility of 

### witnesses. The Judge just mentioned a 

### few. You 

### will use your 

### common sense. You can watch
.. .. 

### You can watch her demeanor, 

### watch.herbehavior, evaluate 

## what she says. Correa, 

### 664 A.2.d 607 (Pa. Super. 1995). Klingerman later.said in the· same opening: must be placed .in context with the rest of an opening statement or closing argument. 

### Com. v. Graham first takes issue with Klingerman. statements. to the jury that they 

### "will believe this victim" and that;~---······"·······- .is to be believed." N.T. p. 21. Statements made: 

### by a prosecutor• .,,._ • • •• ·-· • • • •• ••• • - - •• •• • · ·- • •• • • • • •• ·--· ·- • - """"' •• · "'- -••• ·- - ••-•••• •• •• •··- - ·· • ·- - o- ,., ., ...... , .... ,...-.. , ~- · - ..... ~--- •- 

### T he se r eni arks by Kling erm an wer e m ad e. du ri ng h e r o pen i ng s tatem en t wh ic h 

### i s n o t eviden ce 

### to h o urs wo rked iii re spo nse to Klin ge rm ari 's comm e nts that Gr ah am W .E~ S "lai d off q uit e 

### a bit. " Gr aham firs t . ar g u e s th at Frick was i ne f fective fo r fai l ure to
. intr od ucehis unio n re co rd s o f 

### .2 · . Tr ial Co uns e lfa i l e d 

## to i nv esti ga te and prepa rea . def en se .. . e x perien cewh ich a pros ec u t or i s

_p erm · irt ed t o d o- . Jury as e x pert testimo ny but ins tead a s . an app e al 

### to the j.ury ' s co mm on 

### sen s e and p er s o nal 

### r e s ponse 1 0 Frick 's 

### argumen t
. that wa s 

### l e ss cre dible bec ause ther e was a 

### d e t ar in repo rtin g th e 

### c rim e s : ( N
. T: · p · p : 1 3 7"

- l'.38 :. 1 4 2 ~ l 4 3- , _'1 58)
. 

### The co mmen ts w ere n 9 t· fr am e d

- t o the 

### Graham all e g es th ese c omm e nts am o u n te d 

## to ex pe rt tes ti mo ny an d Fric k wa s inef fe ctiv e fo r fo iling t o 

### o bjec t . . Loo ki ng . at " t h e c o mme n ts i n c o n t ext , Kli ngerman mad e - the se . rem ark s in v i c tims o f the Rom an 

### Catholi c, Church an dJ e rry S andusky 

### sc an d al s. ( N
. T. 

### pp . 1..50, 

### 157 ~ 1 5 8.) mem or abl e.e ve n ts an d that vi c tim s of ab use 

### do n o t re p ort · th e abus e 

### r m medi ate ly s u ch ,r s · the : Kli n g erm an mad e . rern arks in he r c lo sin g arg u me nt r e g ar din g c bi ldrcn' s abil ity t o -re ca ll Kling e rm an ' srernarks and Fric k w as n ot in eff ec ti vef or faili n g t o obje ct. f req uen c y of such ' a c ts. {N .T p p . 90

- 9 1..) Thu s , tes timorty w as p re se nted 

### at trial to su p p ort. s o me thi ng o f .a s ex ual n atu r e h ap p e n ed · '· alm os t e ve ry ti m e" w hen qu e s t i one d b y Fri ck about th e wa s u n a ble to re c all th e e x act dat es the cri m e s occu rr e d on b ut s a ld 

### (f' J.T. p. 

### L 6 8. ) s i ngle 

### d ay " be cau s e the evi den c e did no t s u pport th e 

### fr eq uen c y o f sexu a l ev en ts. (N. T. p, 151.) 'th e ju ry c h ar g e . 

### mad e 

### b y this ' Co urt i ns truc t e d .th e j u ry 

### to j u d g e th e 

### c as e on th e fa c ts pr e s en t ed
. . the alleg e d c riminal ac ts hap p e ned "alm os t every s . hi gJ e day" : and .lat e r that " it h app en ed e v e ry 

### Klingerm an 's c redi b il i ty w i th th e jury, 

### Furtherm o re , thi s iss ue . ofw h ej h e r . or n ot. Graham was l ai d off 

### fre que ntl y i s 

### o f littl e c o nse que nc e to 

### the key al legationsI n th e c a s e. 

### Gr aham all eges 

### Ft.{ck w a s i ne f fe ctiv e for f

ailing 

### to ob

ject 

### to Klingerm arr's remark s that7

alive. (N.T. p. 44)
.. Her grandfather died in 2002 and Graham alleges Frick was ineffective for not introducing the obituary to higlrlightthis inconsistency. While 

### an inconsistency does appear to exist, this Court finds it to be oflittle 

### weight in disproving the 

### criminal acts at issue mid thus
sees no prejudice to Graham. In 'Graham's "objection 

### to dismissal," he also alleged counsel was. ineffective 

### for foiling to ask Graham's co-workers about his work schedule and investigate his wife's work schedule. Graham docs not explain how these facts would have helped his defense and this Court does not find counsel to be ineffective for.not investigating these issues further. Graham finds fault with his .counsel for failing to "call an expert medical witness and forensic psychologist" As the commonwealth presented no medical or expert testimony, witnesses of this nature would. have 

### been of little value to Graham's defense. Graham does. not allege any medical or expert theories of defense that his counsel failed topresentthus this claim is meritless
.. testified at the trial that the abuse started in 2003. when her grandfather was still date ·of the sexual 

### abuse and at which locations it. occurred, 

### the "sexual offenders address worksheet" 

### confirms that Graham is 

## a registered 

### sex offender already with 

### the Commonwealth of Pennsylvania and Frick certainly has a reasonable basis to not introduce it as the document confirms the defendant has a past conviction for 

### a sexual crime requiring 

### registration. Evidence of that nature would be destructive to Graham's defense in 

### a 

### sexual abuse case. on the beginning address worksheet" and : 's grandfather's obituary to impeach
_ the jury and Klingerman never produced 

### concerning Graham's workhours, Therefore, 

### these comments could 

### not have prejudiced Graham. Graham alleges that Frick 

## was ineffective for failure to introduce his "sexual offenders.... . . ... .. .. .. . .... . ........ .. .... ... .. . . · · · · · ······-" · · · · · ·· · · · · · · · ·· ········ · · ···· · · -- · ··· · ·· .. ···· · · - - 8 h e ari n g but w a s. br o u g h t up duri ng trial
. T hi s i sn o t ac le ari ncon s is te n c y andi s ofl ittl e wei gh tto ther e . i s an in c o ns isten cy with th e " dic e g ame " 

### b e c ause it
. wa s 

### n e ver men tion e d at. th e pre limi n ary ju r or ' s mi nd s . It e m s (h) and (i) w ere d i s cu ssed abo ve an d are meritles s c laims , Graham ar g ues que s tioning w o u l ddr a w mor e atten ti on: 

### to th e a e t s allege dl y · comni itte. d ; r e i n fo r c i n g · the m. i n th e Fric k'-
. $ decisi o n to no t q uesti on · "' ·--. . . . about the se i tems wa s . ce rtainl y re ason ab le
. Ext e n ded A ll eg e d i nc on s iste n ci es ( a- g) al l in vo l ve ex plic i t se xu al act s b e tween Gr aham and

a) W he rhe rL , - -· -· · ~ we nt w i th Gr ah am to w a s h sem en o ff'o fcl o thin g ; b ) W he th e r o r al s e x w a s re ci p r o cat e d; c) D etails co ncerni ng oral 

### s e x and "fa ce sitting" ; d ), T h e p orn o graphy Grah am . sho w ed 

### her; e) T h e us e and 

### de s c ripti o n of tw od iff e r en t v ibrat or s ; f) T he se v e rity.o fanal ble edin g foll o w ing f o r ce d an al p enetr atio n; g ) Grah am 

### ' s u se . o f his to n gue 

### a nd fi ng e r 

### su ckin g ; · · ·

· h ) When th e mole station b e g an in
. r e gar d s t o , " s . ag ea ndgra nd fa the r d yin g ; i) Graham 's work s c hedul e ' an d liv ing addr e ss; ·· ·· · · j ) E xi st ence o f a "d ic e game ;" and k ) Detail s abo ut 

## a famil y gatherin g. ' ar e a s · of tes tim ony ; inve stig ation r e port, p r e limin ary heari ng, and tria l. th e in cons ist e nces c e n ter . o n th e fo l l o w ing . Graham a lle ge s · a 

### n u mbe r of .inc o n si s t e nce s e xis t in t es ti mo ny be tw e e n the : i ncid ent 3
. Tri alC

o u ns e lfai led 

## to im

p e ach " · '' W

it h p r i iu : i n c o n s iste ntst

a te m en ts . . . . . , ... . . '' sexu al : abuse. no t pr ov ide stro ng evi de n ce o f mo tiv e 

### 'f or a 

### v i c ti m 

## to fabric at e · t w o y ears of c ons tant 

### fo rced - c oun se l t o in v es ti gate th e e v en ts an d w a s r efu se d
. E v e n 

### i t' tru e ; a co n f r o n t ation i n a s t or e . d oes no oth e r information c o n cernin g the all e g ed co n f ro ntati o n andd o e s not ar g ue th at he as ke d trial 

### s ho w s · e vi de nc e · of

. a preju dici al and h os tile m o ti ve to 

### f ab ri c ate 

## th e alle gatio n . Grah am p rov ides i n D e e' s v i d e o: s t o re and the c rimi nal c o mp l ain t was · fi le d 

### two wee ks 

### lat e r , Grah am alle g e s this 

### . Graham 

### · - alleg es th ere w a s a con f ro ntati o n b etween h im sel f and th e vi cti m in Ap ril 20 12 . ...--.:, \. .... . . ,, ..-·· .. "' " - -·· ·-······ ··- - · ·· , .. ·· ··--- -- ·· · -··--· .. · · -· - -- .. · ··· - - -- ·-···· - · - ·· _,, __ ···-··· · 

### - , ' g v ic ti m. C

o in
. v. J e n e, s : 18 A: 2. d 5 33, 

## ~ 3 4 ( P&.
. S uper . 2 0 0 3). F u rth ermo re, th e S up erior Co urt v ic tim al o ne ; abs ent . m edic al e v i denc e, i s s uffi ci e nt 

### to co n v ic t if th e . 

### f act fin d e r 

### belie v es the insu ffici e n t ' ev iden ce . pr esen te d to ' su stai n the ve rdi c t . Th isis i n corre ct . Th e t es timon y - o f " the co nclude th at . ._. __ . .... was rap e d every s ing le day b e tween th os e two d at e s - oth e rw ise ther e was sex u al i n te rco ur s e was no t pr o vide d ' betwe e n th e . d at es of l / 1 i 20 0 3 t o '6 1 1 ! 2005 th en thejury m o st Gr ah am ar gu e s that b e cause a s pe c ific dat e . a s 

### to wh e n ~--- .. . , .. w as for ce d to sub mi t to. v ic ti m 's a ge an d c on diti on - balanced.agai n s tthe, ri g h ts o fth e-ac c use d
. " D ev lin, at -8 9 .2
. W ith rea sonable ce rtainty" an d " be subj e c t to vari atio ns ba s ed upon the crime s 

### c harged m i d the p rov ided on ly that th e -. c rime occ u rred at ' s o me u ns p ec ifi ed ti m e du rin g a fo urt e en mo n th p e riod
. . 

### H ow e v e r r th e 

### C ourt.s ai d 

### du e I? r o c . ess . d o es . not req uire a fi xed date bu t 

### the date s h o u ld b e " fi x e d 

## .p-r fo rc ed sex ual in terco urs e. Th e D evlin C ourt fo u nd th at · th e d e f e n dan t wa s . pre c l u ded fro m p r ep arin g a, d efen s e 

### t o the c h ar g es a g ains t hi m 

### be c aus e. th e Comm o nw ealth ' s p roof at tri al · p ro vide a s pe cific d at e, Devl i n c o ncern e d a rape c as e wher e - the victim c l aimed a 

### s i ngle i nstan ce 8 i: 8 A. 2 : d 

## s : n ( P a. S up er, 20 .0.3')" a s c a ses s howing
- th at due - proc e ss r e qu i res th e ' co mm on we alth s u pports . thi s conten ti o n with
. cite s to 

### Co m . v. 

### Dev li n; 333 A
. . 2 q . 888 (P ~ . 1975) and 

### ' Com. i 1 • 

### Je tte, in t e r co ur se betw e en th e dat e s · of 

### l/ Ii2 0b 3 and 611 /2

_0.05 to p r ov e . th e . o h ar g c of'
. r ap e . Gr ah am e v idence a g ainst G raham fo r th e Com mo nweal ths inabil i ty to. pr odu c e ev id e nc e of sex ual

. . . 

### 4:
. Tria l an d App el la te Cou n s elfa ile d to r ais e a n i n s uff

ici en cy -, o_fth eevide nce ar gu m ent. 

### Grah am all e ge s that Fri ck was i n eff e ctiv e for her fail uret o 

### argu e th e in s u f fic i en c y 

### of th e m aterial i ss ues o f th e ca s e ; the hi g h b ar, re qu ir ed to s h o w ine f f ec ti v e ass istanc e - of coun s e l ab se n t c lear inc o n s i ste ncie s t o the th e . material i s s ue ofthe a c t s al l eg e d 

### by ~ - -·· · · _ . ",
. ·-· .. . ·-· - " s al leged i n c o n s is t en cy r e gard i n g t h e family g ath e r is al so .mi nor an d · o nly co n ce rns wh o . w as pre se nt. Grah am is thu s u nable t o m eet



### · -----.,_ , .. - ··- - ··-···-· · - -··· -·-··· _..- ,, , ,., ,_ 

### · ~- .. _ , 

## __ .

reco rd r e veal s 110 p arti ali ty , p re jud ic e, bia s , i l l-wil l , or la ck o f s upp ort 

### .that would ne ce s s it ate a f ind i ng o f an ab u se o f dis c r e ti o n byth e thi s . C ou rt thus r e nderin g the c l aim rneri tl ess. 10 abus ed
. i t .S
. dis creti on in admitting the photo. Com . v. Tra va g ila, 28 A
. 3 d

_ :S68 ( Pa , 20 I I)
. T he thr ou g h wi th an . appe al o n thi s . i s sue; A ppellat e c o u ns el w o u ldha v e h a d 

## t9 p ro v e th at trial. c ourt" ove rruled the obje ctio n . Grah am argu es th at 

### app e ll ate coun s e l was in e ffe ctive for 

### not foll ow ing 5
. App e lla te 'Cou nse lfatted to c h al l en g e . the. int roduc tion of th ephoto g ra pb t ri a l e x h i b i t , Kl ing erman i n troduced


### - a: photo g raph of -. . _ w h e n 

### she wa s . nine y e ars old as . the C o mmo n we alth ' s 

### o nl y · exh i bi t . Frick ob j ected ' t c the p ho to's i ntr o du c tion · hut thi s C ourt co nclude that itwo uld 

### be a m eritless 

### claim for.app e l late cou nsel to rai se . 

### C o u rt concluded that 

### thi s c h ( i m w as me ri tless

- for tri al co u n se l to rais e abov e , i t 

### mus. t simil arly t e s t as th at of trial cou n s el. 

### Co r n. v, G ro se -Ila, 90 2 A.2 d 12 90. , 

### · i 2 94 ( P a . S u per, 2006), Sin G
. e this -o f Penns y l v ania. I n e ffec ti ve 

### ass ist an ce of appe llate. co un sel is j ud ged 

### by the same 

### thre e pro ng Gr aham ar gu es that h i s .appell at e c ouns el wa s al so . i nc ffecti v e fo r foili ng to bri n g the insu ffici ency of e vid e nce a s 

## to date · o r" the off en se s arg um en t in an app e al to the S upre me C eu rt n ot an · in con si s t e nc y , o f Dee's any numbe r o ftime s w ithothe r family m embers on o ther occ a s ions 

### an d. therefor this is

. . justt hat s h e 

### did.n ot a cc o m

pany G ra ham in to th at s to re th a t d ay. >:

· . v . c ould h av e been in s i de

. . . · - - ·· · ~ . co ncernin g- this incon s istency
. H owev er , __ . .. .. . di d not t e s tif y that she · never · w

e 1 1t into D ee '

s, ar g u es th at Frick w

_ a

_ s i n eff e c tive for n ot rai s i ng an in s u fficien cy 

### o f the ev ide n ce claim . a sto re 

### call e d Dee 's ; _ .. .. __ ,, t . es ti fi~ d at trial th a ts he did n ot go int o Dee 's with Graham tore nt the mo v i e bu t wa s 

### able to r e call d etai l s abo ut 

### the l ayo u t of th e . st or e. .(N : T , p . 

### 5 : &

- 60)
. Gt aha: ni On
.. o ne o cca s i o n, Grah am wentt o rent a p orn ogr aphi c moviet o watch · \A.I i t h ' from c h ildren
. . 

### Com. v. 

### B roo ks, 7 A .3d 852 ( P f i
. . S uper , 

### 20i O); 

### found th at a ran ge of 

### dates pr ov i des s u f fi c ie n t du e . p ro c es s 

## · i n matter s 

## o f contin u ou s ab u se' 

## o f

## · -- - · · - - - · -- ·· · - -- · - - -· - - - - - -
... ....... ... .... .... 

### . » - · - ~---- .. · .. -- .. ..... ..... ,. _ , , .._ , ,. . .., .. , .... 1 1 8 Graham- po i nts t o stand ard 3 .2 o n p r o v l ding
. ap peals an d s t and ard 5 .3 · on d efen s e servic es wh i ch ar e · i n c o rr ec t desig nati o ns. Thi s C ourt b e l i ev es.Gr aham is p oi n tin g.t o Stand ard 2 .1

- 3 .2 C oun sel 6 n Ap pe al an d Sta n dar d 4- 5
. 3 Obli gati o ns ofS t and- By Coun sel. R egardless
. th e stand ard s cited b y Gr aham must be s eco ndary t o e s tablish e d law, F o r ex ampl e ; wh il e. Standar d
. Z L 0 J. 2 (l:! }' state s thar' 'c
. oun ~e l ' fo

_r a def endant
- appel l an t should not se ekt o withdr a w from a cas e becau s e o f cou nse l 's d e termi natio n . that the ap p e al ' l ac k s . m eri t " .,., · this · s t an d ar d is obv io usly n o t appli cab l e to app o i nted P C:RA coun sel who fin d
. the clai m s o f Hie ap pe al to h e meritles s und er Coin
. v, · Fin ley ; ~5 0 A. 2
. d 2 1 3 ( Pa
. Sup e r , 198 8).
. 

### Hon o r able C o urt in 

### ' T

orres are N. OT 

### P RE S
. l:: NT in · th is · matter. " Spe cifical ly
... 

### "Torres Cou ns e l · Graham argue s th at 

### To rre s is n or appli cabl e 

### to h i s c ase b e cause " f a c ts th at pe rsua ded 'the

. . . . wi th a ci tati ont o 

### Co m . \!. To rr es~ . 630 A .2 d l2 50 , . 12 52 { P a. Sup er: 1993.:)
. claim s pr e sent e d
. and to s ee k w ithdr aw! 

## a s .co un s el. " A tt o rne y Eger s . su pported · t h e st ate men t Grah am, but an interv i e w ·Of th e 

### clien t j s not ne cess ary in or d e r to. u nde rstan d
. the m e rits of to th is- v e ry 

### i ssu e in hi s 1 ' 119 m eri t " le tt e r w he re h e s tated , · , 1 

### ha v e: · no t pe r so na ll y intervie w e d 

### Mr
. fai 

### !i n s. t o conduct an in te rvi e w . p ri or t o 

### the · fi lin g . of th e " n o 

### m eri f " le tter , 

### A tt o rn e y E ger s .s pok e T o pr evail he re , 

### Grah am . mus t 

### s how th at Atto rne y Eg e rs 

### bad n o reas on ab le b a s i s for 1
. M1;
. Eger

s co mm itte d cr iti c a l cou n s e l errer by e r ro n eousl y c o ncluding th a t i i i 1 !a s not n ece ssary t

a intervie w Af

r . . G raha m prior
- Io filin g his. req ues t to with dra w as cou n s el o f 

### reco rd ' · for tri al and appe llate cou nsel 

## a s ' describ e d abov e under 'Stee le. Ry k a rd, at 

### 1J 89. stand ar ds cited ' b y Graham, Th e s tan dard fo r in eff e cti ve as sistan ce 

### of P CRA co un s el is th e s ame revie w . i s g ui de d by · P e nn s yl va niajuri s pruden c e . an d appli c abl e fed eral case la w , n o t th e . AB A Asso ci ation Pr o

ject on · Minimum Standards f o r . Crimi nal Justi c e . " Th i s Cou rt n otes th at its 

### committe d " critic al co un sel : e rror " and v io lat e d 

### st andards se t out b y the Am eric an Bar amount e d to a usurp ati o n of the p r o s ecu t o ri al fun ctio n , " Gr ah am argu es .that .Attorn ey Eg e rs 

### "erron eo us l y c o nc lud in g . that i t w as n ot n ece ssary to int e rv ie w M r . Gr aham pri o r to fil ing his reque s t t o with dr aw a s Co unsel o fReco rd" and (2) "erro n e ously au thorin g a 

### No M erit Le tt er that 

### Grah am av e r s th at A tt or ne y 

### B ge rs p rov i ded 'i n e ffec tiv e a ss i s tanc e of co unsel by ( I ) II. Ineffective.As s i s tance of.PCRA Coun se l "~
.. ... . ,,, ..

_ , ,. ,., 

# __ ,, .. 

# __ ,.,.,, .. .. 

# __ 12 was familiar wi th 

## hi s c lie nt ' s c laim s si n ce 

### he pr ev i ousl y r e present e d h i m beth i n filing 

### h i s P '. C. R .A. Pe tition an d durin g r e-s ent e ncing: " Graham fu rth er posit s 

### th at the 

### T orre s Co urt 

### " s et fo rth c ou n se l's re sp o nsib ili ty t o · ] N.TEii VIEW a de fe ndan t du ri ng h is r e pres e ntati o n . " WhHe Grah am . i s co rr e ct . th at the fa cts of" his cas e - are di s ti nct fr om ' T orre s, Gr aham 

### is inc o rre ct in wh at th e . 

### T

or res opi nio n s tood fo r. T or ie s s p ecific ally e x amin e d whethe r pr 

### n o t an 

### i n te rv i ew ofthe D efe n dant was n ecessary be f ore counse l
. could withdrawal

-r ep res entati o n unde r· A n ders v C

a liforn ia; 3 86 U. S
. : 73 8, 87 S'.Ct
. 139 6 ~ 

### 18 L.Ed .2d 

### 493 ( l 

### 9 (5 7 ). To r re s held th at the

. k e y d etermi nation .P C RA c o u ns e l mu st m ake i s wh eth e r. th e . ap pc al

- is f rivc l o u s w h i c h

- an i nte rvie w may aid 

### i ry but "an i nterv i ew is un n ec e ssary 'in most . i n s t a nces, an d we fi nd np j11 ~ ·1{fi ca1ion. in ma k i ng , om} a n. addi : iio1 1i. 1/ A 11ders r e. q u irel'n ei1 t. ' ' 'To rr

e s, at 287 (Emphasis
. added). °T h e C o urt . w.e nt on t o ex p li c i tl y s tate= 'w e d o no t pr o p os e an y per sc r equ i r eme nt s - of inte rvi ew in g
or communic ati on with app el l an t bi coun s e l. " 

### Id , . at 

### · 2 9 0
. Ftuth emr ore ; "c oun sel is pres umed 

### to
a ct. pro fessio nall y a n d ethi cally 

# in this 

### pr oce ss and will e ng age in s uch c ommun i c ation as
re quited b y ea ch ca se . . ,,,. 

### Id. A ttorne y Eg er s ind i c ated 

### that be rev i e w ed the e n tirety of G r ah am' s fil e wi th · the W ashin g ton Coun tyC lerk o f C o urt's Of fice in clu d i ng tr an s c ri pts o f e v e ry h earin g as ; w e l l as
e v e ry opin i on.issued

. b y th i s 

### Co urt and the Superi o r Court p e rtainin gto Graham
. B as e don ' th at
rev iew , A tt o rney Ege r s det ermi ned th at Grah am w as in e l ig ible for r e lief u n de r the P C RA because th e c l ai m s w e re with o u t meri t , T h e r e is- n othi ng in th e record , an d
. 

### no ar g umen t s put 

### fo rth b y Graham , t o · o v erc o me the pr esu mp tion th at Att orney Ege r s' 

### c h ose n ot-t o con duc t an

' i n t e rv ie w bec aus e it was un necess ary . Thus, 

### Gr aham fail s · to 

### me e t hi s burd en ne c es s ary to 

### · pro v e ine ff e cti ve ass istan ce o f 

### P C RA
. Co u n sel
.' 

### -·- -- .. 

## _ .. .. ,....,. , ... _. ........._ , ,,. ... _._ ,,,,_ , .... .. .. 

### __ . .. ,., _._ ........ . .. , .,. _ , , .. ,_, , .. ,, , ... , ,--·· ·- ·- · .. --, .. ,

.. ,, ,, ''._A ttorne y E g e rs author e d a 15 pa ge . l e Ue r in thi s c a se that tak es - the sam e fo rm as bri ef s .re quired by the court in Sa nti ag o , · ' b ur den pl ace d upo n h i m to pr ov e ineff e cti ve assi st anc e of P CRA coun s e l , co u n s el w hic h cl e arl y did 

### no t h appe n in th e 

### p re se n t cas e. Grah am 

### i s t hus u n ab l e t o , m e et the - d ~ d~ion r e vo lves ar o un d the g o v ernmen t in that c a se adoptin g the bri ef o f thed e fe ndant' s P P RA. . . U n i te d S t at e - S up re m e Court, Furth e rm o r e , th e o n l y fa c t G r ah am c ites to . f r om th e 'S uggs d e c ided b y the Uni t e d Stat es C ourt o f A ppeals fo r the D i s tri ct of Co lumbia C irc uit, n o t the that p e r s uad e d th e U nit ed 

### : ~ ta

_te s. S upre m e Court " ' in Su gg . ~ '
. are , pr es e n ti n thi s c as e . Su g g « wa s cas e . • ~'u gg s v, Unite d S ta tes, 39 · 1 F: 2ct 

### 9 7 

### i; 9 74 

# ro. c. C ir. 

### 19 6
. 8 ) and 

### c l aims th c1t " irnp ort anf fa ct s 1

_ 1 0 sp e ci fic s e cti o n s o f th e "n o meri t " l e tt e r t o sup po rt thi s cont ention
. Graham d o es . c ite to · th e G r ah am is c o rre ct th at A ttorne y E ge rs . is n o t al l ow ed to act a s his ad ve r sary hut c i te s to 

### l o n g as 

### th e att orn e y au thor s 

### a bri ef" 

### ex pl ain in g w h y ea ch clai m .l a c ke d meri t under Co m . v . me rit.of s ai d c laim s. If the cl aims lack m e rit, coun se l is pe rmitr edto w ith drawal fro m the c a s e as a d e ar p r ocess . f

o r app o i nted P t :aA t o exami n e clai m s p ut f orth b y the i rc li ent s an d to j u ~ _gc the · p r ogeny d o n ot requ ir e coun s e l to blindl y s upport P C RA cl aims that 

## l ac k merit. A n ders l ay s o ut 

### imp osed 3: 

### r equ i r em e n t 

## o n P C RA c oun s e l to ad vo cat e - for th ei r cli e n t s. 

### How e v er , An der s 

### an d i ts. . authorin g a " no m e ri t " lett er . G rah am c ite s t o A n de rs t o illus trate · this and s tates the Co urt 

### t o the be st' o f hi s abili ty " 

### an d that Attorn ey Eg er s aban do n ed his
. r ole as Grah am 's 

### a dv oc at e 

### by Gr ah am . argu es th atA tt o rneyE g ersw as r equ i red 

### to "s u pp ort . M r . . 

### Gr aham a ; s 

### [ s k jAp.pe al ? , Mr
. Ege 

### rs comm itte d c ri t i c a l c o u nse l error b y e r roneo u s ly 

### a u tho ri ng 'a n o me rit letter th a t amo unte d to (1 us urp at io n of f h e . pro s ecu to ri al .fu n c tion · t h a t i ncl u ded a g rat u i to us 

### explan a t i o n.o

fth e -a bsen ce

o f merit o f 

### Mr . Gra h a m 's cla im s , "'\
.

### 14 KATHERINE B. EMERY, .PRESIDENT JUDGE 

### :BY THECOVRT: assistance of counsel were meritless should be affirmed. The.JulyZl , 2016 Order by this Court finding that Graham's claims for ineffective CONCLUSION