J-A21023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, 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 well 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-day jury trial began on September 16, 2013. . . . 

At trial, the Commonwealth offered the testimony of the 

victim, her mother, and the arresting officer.
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At the time of trial, the victim was [19] years old. 

[Appellant] married the victim’s aunt when the victim 

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 would 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. Similar 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 

distance 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 explained 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 the 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, 
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[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 her 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 “felt 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. At 
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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, which 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 nine 

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, but 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 

complaint 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. He 
J-A21023-17

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testified that it was common for minor children to 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 Court 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, for 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 September 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 off 
J-A21023-17

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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 proceedings. 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 

PCRA 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 of appeal and now raises two claims to 

this Court:
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[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,1the relevant law, the certified 

record, the notes of testimony, and the opinion of the able PCRA court 

judge, President Judge Katherine 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 for 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 requested 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)
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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 by 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 

motion 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 sought, 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).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2017
1 

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), 

218 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 

alleged sexual abuse of his niece, ..... __ . . .. ·-.-· .... ·- i:hr a period between Januaryl , 2003 

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,, 

vs, No. 1468 of 2012 

.,~ 

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) 

) 

) 

) 

) 

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 PM
2 

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~ 61'\and 141h Amendments of 

Graham W~S. not instructed to. file a Concise Statement of Matters Complained of on 

ISSUES QN APPEAL 
4 

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 not 
support 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 

and that had. believable testimony because it was consistent. In 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- ,.,., ...... , .... ,...-..,~-·- ..... ~---•- 

These reniarks by Klingerman were made. during her opening statement which is not evidence to 

hours worked iii response to Klingermari's comments that Graham W.E~S "laid off quite a bit." 

Graham first. argues that Frick was ineffective for failure to. introducehis union records of 

.2·. Trial Counselfailed to investigate and preparea.defense ... 

experiencewhich a prosecutor is _perm·irted to do- . 

Jury as expert testimony but instead as. an appeal to the j.ury' s common sense and personal 

response 10 Frick's argument .that was less credible because there was a detar in 

reporting the crimes: (N.T: ·p·p: 137"-l'.38:. 142~l43-, _'158). The comments were n9t·framed-to the 

Graham alleges these comments amounted to expert testimony and Frick was ineffective for 

foiling to object. . Looking .at "the comments in context, Klingerman made- these. remarks in 

victims of the Roman Catholic, Church andJerry Sandusky scandals. (N.T. pp. 1..50, 157~158.) 

memorable.events and that victims of abuse do not report · the abuse rm mediately such ,rs· the: 

Klingerman made .rernarks in her closing argument regarding cbildrcn's ability to -recall 

Klingerman'srernarks and Frick was not ineffectivefor failing to object. 

frequency of such 'acts. {N.T pp. 90-91..) Thus, testimorty was presented at trial to support. 

something of .a sexual nature happened ·'·almost every time" when questioned by Frick about the 

(f'J.T. p. L68.) was unable to recall the exact dates the crimes occurred on but sald 

single day" because the evidence did not support the frequency of sexual events. (N. T. p, 151.) 

'the jury charge. made by this 'Court instructed .the jury to judge the case on the facts presented .. 

the alleged criminal acts happened "almost every s.higJe day": and .later that "it happened every 

Klingerman's credibility with the jury, Furthermore, this issue .ofwhejher .or not. Graham was 

laid off frequently is of little consequence to the key allegationsIn the case. 

Graham alleges Ft.{ck was ineffective for failing to object to Klingermarr's remarks that 
7 

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. 

address worksheet" and on the beginning : '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 

hearing but was. brought up during trial. This isnot aclearinconsistency andis oflittle weightto 

there. is an inconsistency with the "dice game" because it.was never mentioned at. the preliminary 

juror's minds. Items (h) and (i) were discussed above and are meritless claims, Graham argues 

questioning woulddraw more attention: to the aets allegedly ·comniitte.d; reinforcing· them.in the 

Frick'-.$ decision to not question·"'·--... .about these items was .certainly reasonable. Extended 

Alleged inconsistencies (a-g) all involve explicit sexual acts between Graham and 

a) WherherL, --·-··~ went with Graham to wash semen off'ofclothing; 

b) Whether oral sex was reciprocated; 

c) Details concerning oral sex and "face sitting"; 

d), The pornography Graham .showed her; 

e) The use and description of twodifferent vibrators; 

f) The severity.ofanal bleeding following forced anal penetration; 

g) Graham 's use. of his tongue and finger sucking; · ·· 

·h) When the molestation began in.regards to , "s.ageandgrandfather dying; 

i) Graham 's work schedule 'and living address; ·· ·· ·· 

j) Existence of a "dice game;" and 

k) Details about a family gathering. 

'areas ·of testimony; 

investigation report, preliminary hearing, and trial. the inconsistences center .on the following 

.Graham alleges· a number of .inconsistences exist in testimony between the: incident 

3. TrialCounselfailed to impeach"·'' With priiu: inconsistentstatements .. 

... , ..... '' 

sexual :abuse. 

not provide strong evidence of motive 'for a victim to fabricate· two years of constant forced 

-counsel to investigate the events and was refused. Even it' true; a confrontation in a store. does 

no other information concerning the alleged confrontation anddoes not argue that he asked trial 

shows ·evidence· of.a prejudicial and hostile motive to fabricate the allegation. Graham provides 

in Dee's video: store and the criminal complaint was ·filed two weeks later, Graham alleges this 

. Graham ·-alleges there was a confrontation between himself and the victim in April 2012 

. ...--.:, 

\ 
...... .,, ..-·· .. "'"--···-········--··· , .. ····-----···-··--· .. ··-·--- .. ····---- ·-····- ·-·· _,, __ ···-···· - , 

'g 

victim. Coin. v. Jene, s:18 A:2.d 533, ~34 (P&.. Super. 2003). Furthermore, the Superior Court 

victim alone; absent. medical evidence, is sufficient to convict if the. fact finder believes the 

insufficient 'evidence. presented to 'sustain the verdict. Thisis incorrect. The testimony -of" the 

conclude that .. _.__ ..... was raped every single day between those two dates - otherwise there was 

sexual intercourse was not provided 'between the. dates of l /1 i2003 to '611 !2005 then thejury most 

Graham argues that because a specific date .as to when ~--- ... , .. was forced to submit to. 

victim 's age and condition-balanced.againstthe, rights ofthe-accused." Devlin, at -89.2. 

With reasonable certainty" and "be subject to variations based upon the crimes charged mid the 

provided only that the -. crime occurred at 'some unspecified time during a fourteen month period .. 

However r the Co urt.said due I?roc.ess. does. not require a fixed date but the date should be "fixed 

.p-r forced sexual intercourse. The Devlin Court found that· the defendant was. precluded from 

preparing a, defense to the charges against him because. the Commonwealth' s proof at trial 

·provide a specific date, Devlin concerned a rape case where-the victim claimed a single instance 

8i:8 A.2:d s:n (Pa. Super, 20.0.3')"as cases showing -that due-process requires the 'commonwealth 

supports. this contention with .cites to Com. v. Devlin; 333 A .. 2q. 888 (P~. 1975) and 'Com. i1 • Jette, 

intercourse between the dates ·of l/Ii20b3 and 611/2_0.05 to prove .the .ohargc of'.rape. Graham 

evidence against Graham for the Commonwealths inability to. produce evidence of sexual 

. . . 

4:. Trial and Appellate Counsel failed to raise an insufficiency -, o_f theevidence argument. 

Graham alleges that Frick was ineffective for her failureto argue the insufficiency of the 

material issues of the case; 

the high bar, required to show ineffective assistance-of counsel absent clear inconsistencies to the 

the.material issue ofthe acts alleged by ~--····_ .", . ·-· ... ·-·- "s alleged inconsistency regarding thefamily gather is also .minor and· only concerns who. was present. Graham is thus unable to meet 

·-----., 
_ , .. -··--··-···-··--···-·-···_..- ,,, ,., ,_ ·~- .. _ , __ . 

record reveals 110 partiality, prejudice, bias, ill-will, or lack of support .that would necessitate a 

finding of an abuse of discretion bythe this. Court thus rendering the claim rneritless. 

10 

abused. it.S. discretion in admitting the photo. Com. v. Travagila, 28 A.3d_:S68 (Pa, 20 I I). The 

through with an.appeal on this. issue; Appellate counsel wouldhave had t9 prove that trial. court" 

overruled the objection. Graham argues that appellate counsel was ineffective for not following 

5. Appellate 'Counselfatted to challenge. the. introduction of thephotograpb trial exhibit, 

Klingerman introduced -a: photograph of -.. _ when she was. nine years old as. the 

Commonwealth's only· exhibit. Frick objected 'tc the photo's introduction · hut this Court 

conclude that itwould be a meritless claim for.appellate counsel to raise. 

Court concluded that this ch(im was meritless -for trial counsel to raise above, it mus.t similarly 

test as that of trial counsel. Corn. v, Grose-Ila, 902 A.2d 1290., ·i 294 (Pa. Super, 2006), SinG.e this 

-of Pennsylvania. Ineffective assistance of appellate. counsel is judged by the same three prong 

Graham argues that his .appellate counsel was also .incffective for foiling to bring the 

insufficiency of evidence as to date· or" the offenses argument in an appeal to the Supreme Ceurt 

not an· inconsistency, 

of Dee's any number oftimes withother family members on other occasions and. therefor this is 

. . 

justthat she did.not accompany Graham into that store that day.>: ·.v. could have been inside 

. . . ·--·· ·~ . 

concerning- this inconsistency. However, __ ... .. . did not testify that she· never ·we11t into Dee 's, 

argues that Frick w_a_s ineffective for not raising an insufficiency of the evidence claim 

.a store called Dee's; _ .... __ ,, t.estifi~d at trial thatshe did not go into Dee's with Graham torent 

the movie but was able to recall details about the layout of the .store. .(N:T, p. 5:&-60). Gtaha:ni 

On .. one occasion, Graham wentto rent a pornographic movieto watch ·\A.Ii th 'from 

children .. Com. v. Brooks, 7 A.3d 852 (Pfi .. Super, 20i O); 

found that a range of dates provides sufficient due. process ·in matters of continuous abuse' of 
·---··---·--···---·---·------ ............. ........ 

. »-·-~---- .. · .. -- ............ ,._, , .. _, ,. . .., .. , .... 

11 

8 Graham- points to standard 3 .2 on provlding.appeals and standard 5 .3· on defense services which are· incorrect 

designations. This Court believes.Graham is pointing.to Standard 2.1-3.2 Counsel 6n Appeal and Standard 4-5.3 

Obligations ofStand-By Counsel. Regardless. the standards cited by Graham must be secondary to established law, 

For example; while. Standard.Z L0J.2(l:!}'states thar''c.oun~el 'fo_r a defendant-appellant should not seekto withdraw 

from a case because of counsel's determination.that the appeal 'lacks.merit" .,.,·this· standard is obviously not 

applicable to appointed PC:RA counsel who find. the claims of Hie appeal to he meritless under Coin. v, · Finley; ~50 

A.2.d 2 13 (Pa. Super, 1988). . 

Honorable Court in 'Torres are N.OT PRES.l::NT in· this· matter." Specifically ... "Torres Counsel 

·Graham argues that Torres is nor applicable to his case because "facts that persuaded 'the 

. . . . 

with a citationto Com. \!. Torres~.630 A.2d l250,. 1252{Pa. Super: 1993.:). 

claims presented .and to seek withdraw! as .counsel." Attorney Egers .supported · the statement 

Graham, but an interview ·Of the client js not necessary in order to. understand. the merits of 

to this- very issue in his 1'119 merit" letter where he stated ,·,1 have: ·not personally interviewed Mr. 

fai !ins. to conduct an interview .prior to the· filing.of the "no merif" letter, Attorney Egers .spoke 

To prevail here, Graham. must show that Attorney Egers bad no reasonable basis for 

1. M1;. Egers committed critical counsel errer by erroneously concluding that ii i1!as not 

necessary ta interview Afr .. Graham prior -Io filing his. request to withdraw as counsel of 

record ' · 

for trial and appellate counsel as 'described above under 'Steele. Rykard, at 1J 89. 

standards cited 'by Graham, The standard for ineffective assistance of PCRA counsel is the same 

review .is guided by· Pennsylvaniajurisprudence. and applicable federal case law, not the .ABA 

Association Project on· Minimum Standards for .Criminal Justice." This Court notes that its 

committed "critical counsel: error" and violated standards set out by the American Bar 

amounted to a usurpation of the prosecutorial function," Graham argues .that .Attorney Egers 

"erroneously concluding. that it was not necessary to interview Mr. Graham prior to filing his 

request to withdraw as Counsel ofRecord" and (2) "erroneously authoring a No Merit Letter that 

Graham avers that Attorney Bgers provided 'ineffective assistance of counsel by (I) 

II. Ineffective.Assistance of.PCRA Counsel 

"~. 
..... ,,, .. _, ,.,., __ ,, .. __ ,.,.,, .... __ 

12 

was familiar with his client's claims since he previously represented him beth in filing his 

P'.C.R.A. Petition and during re-sentencing:" Graham further posits that the Torres Court "set 

forth counsel's responsibility to·]N.TEiiVIEW a defendant during his representation." 

WhHe Graham .is correct. that the facts of" his case -are distinct from 'Torres, Graham is 

incorrect in what the. Torres opinion stood for. Tories specifically examined whether pr not an 

interview ofthe Defendant was necessary before counsel .could withdrawal -representation under· 

Anders v California; 386 U.S.: 738, 87 S'.Ct. 1396~ 18 L.Ed.2d 493 ( l 9(57). Torres held that the 

.key determination .PCRA counsel must make is whether. the .appcal -is frivclous which -an 

interview may aid iry but "an interview is unnecessary 'in most. instances, and we find np 

j11~·1{fica1ion. in making, om} an.addi:iio11i.1/A11dersre.quirel'nei1t.'' 'Torres, at 287 (Emphasis .added). 

°The Court .w.ent on to explicitly state='we do not propose any per sc requirements-of interviewing 

or communication with appellant bi counsel." Id, .at ·290. Ftuthemrore; "counsel is presumed to 

act. professionally and ethically in this process and will engage in such communication as 

requited by each case .. ,,,. Id. 

Attorney Egers indicated that be reviewed the entirety of Graham's file with· the 

Washington CountyClerk of Court's Office including transcripts of every hearing as; well as 

every opinion.issued .by this Court and the Superior Court pertainingto Graham. Basedon 'that 

review, Attorney Egers determined that Graham was ineligible for relief under the PCRA 

because the claims were without merit, There is- nothing in the record, and. no arguments put 

forth by Graham, to· overcome the presumption that Attorney Egers' chose not-to conduct an 

'interview because it was unnecessary. Thus, Graham fails· to meet his burden necessary to ·prove 

ineffective assistance of PCRA. Counsel. 
' -·--- .. _ .. .. ,....,., ... _. ......... _, ,,. ... _._,,,,_, .... .... __ ... ,.,_._ ......... .. ,.,._,, .. ,_, , .. ,,, ... ,,--···-·-· .. --, .. , .. ,,,, 

''._Attorney Egers authored a 15 page .leUer in this case that takes- the same form as briefs.required by the court in 

Santiago, · 

'burden placed upon him to prove ineffective assistance of PCRA counsel, 

counsel which clearly did not happen in the present case. Graham is thus unable to, meet the 

-d~d~ion revolves around the government in that case adopting the brief of thedefendant' s PPRA. 

. . 

United State -Supreme Court, Furthermore, the only fact Graham cites to. from the 'Suggs 

decided by the United States Court of Appeals for the District of Columbia Circuit, not the 

that persuaded the United :~ta_tes. Supreme Court" 'in Sugg.~' .are, presentin this case. Sugg« was 

case .• ~'uggs v, United States, 39·1 F:2ct 97 i; 974 ro.c. Cir. 196.8) and claims thc1t "irnportanf facts 

1_10 specific sections of the "no merit" letter to support this contention. Graham does .cite to· the 

Graham is correct that Attorney Egers. is not allowed to act as his adversary hut cites to 

long as the attorney authors a brief" explaining why each claim .lacked merit under Com. v. 

merit.of said claims. If the claims lack merit, counsel is permitredto withdrawal from the case as 

a dear process.for appointed Pt:aA to examine claims put forth by theirclients and to ju~_gc the· 

progeny do not require counsel to blindly support PCRA claims that lack merit. Anders lays out 

imposed 3: requirement on PCRA counsel to advocate-for their clients. However, Anders and its. 

.authoring a "no merit" letter. Graham cites to Anders to illustrate ·this and states the Court 

to the best' of his ability" and that Attorney Egers abandoned his. role as Graham 's advocate by 

Graham.argues thatAttorneyEgerswas required to "support .Mr .. Grahama;s [skjAp.peal 

?, Mr. Ege rs committed critical counsel error by erroneously authoring 'a no merit letter that 

amounted to (1 usurpation of f he. prosecutorial .function · that included a gratuitous 

explanation.ofthe-absence of merit of Mr. Graham's claims, 

"'\. 
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