J-S18022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM LEE RAUCH,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1201 WDA 2017

Appeal from the PCRA Order July 21, 2017

in the Court of Common Pleas of Clearfield County,

Criminal Division at No(s): CP-17-CR-0000251-2013

BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018

William Lee Rauch (“Rauch”) appeals from the Order dismissing his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

This Court previously summarized the factual history of this case as

follows:

This case was initiated by the filing of a Criminal Complaint on

April 5, 2013[,] by Patrolman Ralph Nedza of the Clearfield

Borough Police Department. Said Complaint alleged that [Rauch]

robbed, at knifepoint, the Domino’s Pizza, located in the Borough

of Clearfield, Pennsylvania, on April 4, 2013. It was purported,

and ultimately established at [Rauch’s] trial, that [he] had entered

the pizza shop bedecked in a gray “hoodie” sweatshirt, a knitted

hat made into a mask, and blue jeans with a gold embroidery

embellished on the back pocket. After entering into Domino’s,

[Rauch] wielded a green-handled knife, approximately four inches

in length, and demanded money from the store manager. While

brandishing the knife approximately one foot away from the

manager, [Rauch] arrogated that the manager turn over all of the

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1 See 42 Pa.C.S.A. §§ 9541-9546.
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currency contained in the store’s cash register. The manager,

fearing for her life, complied with [Rauch’s] nefarious demand by

handing over the monies, which was comprised of numerous one

and five dollar bills.

Multiple Domino’s employees witnessed the hold-up, and

the business surveillance system recorded, both visually and

audibly, the robbery. The employees immediately reported the

incident to law enforcement. After receiving news of the crime,

officers were dispatched to canvass the area surrounding the pizza

joint. Officers quickly found [Rauch] walking in the vicinity and

stopped [him] to inquire about the robbery. When the policemen

observed [Rauch], he was wearing the same embroidered pants

observed at the crime scene and a black tee-shirt. After arresting

[Rauch] for an unrelated crime [that same evening (public

drunkenness)], it was later revealed that [he] was the same

individual who earlier [had] robbed the Domino’s Pizza.

The police also discovered the articles of clothing, worn in

the robbery, and the knife, displayed to the store manager,

abandoned behind a building close to where [Rauch] was

apprehended. Some of the articles were later determined to have

[Rauch’s] DNA present on them. Police also found a large amount

of low-denominational currency on [Rauch’s] person after he was

arrested.

Commonwealth v. Rauch, 116 A.3d 682 (Pa. Super. 2014) (unpublished

memorandum at 1-3) (citation, footnote, and ellipses omitted).

The Commonwealth thereafter charged Rauch with two counts of

robbery, and one count each of terroristic threats, theft by unlawful taking,

and simple assault.2 The matter proceeded to a jury trial, wherein Rauch was

represented by Michael Marshall, Esquire (hereinafter, “Attorney Marshall”), and Curtis Irwin, Esquire (hereinafter, “Attorney Irwin”) (both counsel

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2 See 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3701(a)(1)(iv); 2706(a)(1), 3921(a),

2701(a)(3).
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collectively hereinafter referred to as “trial counsel”). At the close of trial, the

jury found Rauch guilty of all counts. Thereafter, the trial court sentenced

Rauch to an aggregate term of eight to sixteen years in prison. Rauch filed a

Motion for reconsideration of sentence, which the trial court denied. This

Court affirmed Rauch’s judgment of sentence, after which the Pennsylvania

Supreme Court denied Rauch’s Petition for allowance of appeal, nunc pro tunc. See Rauch, 116 A.3d 682, appeal denied, 121 A.3d 496 (Pa. 2015).

On April 26, 2016, Rauch timely filed the instant PCRA Petition, his first.

The PCRA court appointed Rauch PCRA counsel, who thereafter filed an

Amended PCRA Petition, raising claims of trial counsels’ ineffectiveness. After

an evidentiary hearing (hereinafter, the “PCRA Hearing”), wherein trial

counsel and Rauch testified, the PCRA court dismissed Rauch’s Petition by an

Opinion and Order entered on July 21, 2017. Thereafter, Rauch filed the

instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

Rauch now presents the following issues for our review:

I. Whether [Attorney Marshall,] who significantly participated

in the trial[,] was ineffective for failing to properly prepare

for trial by not communicating with [Rauch] and preparing

adequate defenses?

II. Whether [Rauch’s] constitutional rights under the Sixth

Amendment were violated by [trial] counsel[s’] ineffective

failure to call Robert Elsavage [(“Elsavage”),] and to

stipulate to the entry of his report without consulting

[Rauch,] and depriving the jury of the opportunity to

properly weigh [Elsavage’s] testimony?
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III. Whether [trial] counsel [were] constitutionally ineffective

under the Sixth Amendment for failing to object to portions

of the prosecutor’s closing statement[,] which instructed the

jury to judge the case as though [Rauch] was the only

person present at the scene[,] and further to find [Rauch]

guilty if they believed he did commit the crime?

IV. Whether [Rauch’s] rights under the Constitution were

violated based upon the cumulative impact of the above

errors?

Brief for Appellant at 4 (capitalization omitted). The applicable standards of review regarding the dismissal of a PCRA

petition and ineffectiveness claims are as follows:

This Court’s standard of review regarding an order

[dismissing] a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of

record and is free of legal error. The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the

certified record.

* * *

To prevail on a claim alleging counsel’s ineffectiveness

under the PCRA, [a petitioner] must demonstrate (1) that the

underlying claim is of arguable merit; (2) that counsel’s course of

conduct was without a reasonable basis designed to effectuate his

client’s interest; and (3) that he was prejudiced by counsel’s

ineffectiveness [(hereinafter referred to as the “prejudice

prong”)], i.e.[,] there is a reasonable probability that but for the

act or omission in question[,] the outcome of the proceeding

would have been different.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and

brackets omitted); see also Commonwealth v. Solano, 129 A.3d 1156,

1162-63 (Pa. 2015) (stating that failure to establish any prong of the test will

defeat an ineffectiveness claim). Finally, “[w]hen evaluating ineffectiveness

claims, judicial scrutiny of counsel’s performance must be highly deferential.”
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Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) (citation and

quotation marks omitted).

In his first issue, Rauch argues that Attorney Marshall rendered

ineffective assistance of counsel, which prejudiced Rauch and deprived him of

a fair trial. See Brief for Appellant at 9-12. Specifically, Rauch avers that

Attorney Marshall failed to adequately prepare for trial due to his (1)

undisputed failure to meet with Rauch and discuss the case prior to jury

selection; and (2) resultant inability to “prepare an adequate defense without

communicating personally with [] Rauch.” Id. at 11. Rauch further contends

that “at no time was [Attorney Marshall] able to give a reasonable explanation

as to why the proper communication did not occur.” Id. at 12.

In its Opinion and Order, the PCRA court addressed Rauch’s claim as

follows:

Despite Attorney Marshall’s minimal involvement in the case at its

early stages, the [PCRA] [c]ourt believes that Attorney Marshall,

who acted as co-counsel to Attorney [] Irwin, was well prepared

and was ultimately effective in [Rauch’s] criminal trial. During the

[PCRA H]earing on this matter, Attorney Irwin testified that he

met with [Rauch] more than a standard client, which included

meeting on nights and weekends. Further, Attorney Irwin

indicated that [Rauch] had written numerous letters to Attorney

Irwin’s office, approximately one letter per day, which allowed

Attorney Irwin to better understand [Rauch’s] case. Attorney

Marshall also testified at the May 22, 2017 [PCRA H]earing that in

order to prepare for [Rauch’s] criminal trial, Attorney Marshall

went over the case with Attorney Irwin[,] who had worked closely

with [Rauch,] and who had a very good working knowledge of the

case. Thus, given the extent to which Attorney Irwin met with

[Rauch] and reviewed [Rauch’s] case, and because Attorney

Marshall consulted with Attorney Irwin as co-counsel, the [PCRA]

[c]ourt believes that Attorney Marshall was adequately prepared
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for trial, that his actions were reasonable, and that [Rauch] did

not suffer any prejudice therefrom.

PCRA Court Opinion and Order, 7/21/17, at 2-3.

The PCRA court’s foregoing analysis is supported by the record, and we

agree with its determination that Rauch failed to meet his burden to prove

that Attorney Marshall was ineffective. First, it is well settled that, in reviewing

a claim of ineffectiveness of counsel, we “grant great deference to the factual

findings of the PCRA court[,] and will not disturb those findings unless they

have no support in the record.” Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa. Super. 2014) (en banc) (citation omitted). Accordingly, here, we defer

to the factual finding of the PCRA court, which had considered the testimony

at the PCRA Hearing, that Attorney Marshall was adequately prepared and was

ultimately effective. See id. Second, even if Attorney Marshall had met with

Rauch prior to jury selection, there is no reasonable possibility that the

outcome of Rauch’s trial would have been different. See Wah, supra. Aside

from a bald assertion of prejudice, Rauch does not plead or prove any specific

allegation of prejudice. Rather, he merely articulates a desire in hindsight to

speak with one of his co-counsel more than the other prior to trial.

Accordingly, Rauch’s first issue entitles him to no relief.

In his second issue, Rauch contends that trial counsel were ineffective

for failing to call Elsavage as an expert witness to testify as to a report
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(hereinafter, the “Report”) that he had prepared concerning Rauch’s case.3

See Brief for Appellant at 13-15. According to Rauch, “[t]he [R]eport ... was

extremely significant as it indicated [that] cornmeal, a substance used by

Domino’s Pizza, was not found on the money. This was a key piece of evidence

that could have exonerated [] Rauch.” Id. at 13. Rauch points out that the

parties stipulated to the admission of the Report, but complains that trial

counsel were ineffective for failing to consult with Rauch concerning the

stipulation and its consequences. Id. at 15.

In its Opinion and Order, the PCRA court addressed Rauch’s claim as

follows:

[] Elsavage, although not called to testify, had drafted an expert

[R]eport as part of his position with the Pennsylvania State Police

Bureau, Erie Regional Laboratory, which was ultimately admitted

into evidence. Further, the [R]eport was admitted into evidence

per a stipulation by the Commonwealth and [trial] counsel, and

was read into the record by Attorney Marshall. During the [PCRA]

[H]earing on this matter, Attorney Marshall indicated that[,] in his

opinion, having the [R]eport admitted without [] Elsavage’s

testimony was actually more favorable to [Rauch]. However, the

[PCRA] [c]ourt would [] note that pursuant to Pennsylvania case

law, counsel need not discuss all strategic options with his or her

client. [See Commonwealth v. Glover, 619 A.2d 1357, 1359

(Pa. Super. 1993) (stating that “[w]hen reviewing an

ineffectiveness claim, we do not require the highest caliber of

criminal defense skills; a minimum level of competency is the

standard by which we judge counsel’s performance[,]” and that

“[c]ounsel need not discuss all strategic options with his or her

client.”)]. Moreover, because the [R]eport of [] Elsavage was

admitted into evidence, the [PCRA] [c]ourt does not believe that ____________________________________________

3 Specifically, Elsavage, in his capacity as a lab technician with the

Pennsylvania State Police Bureau, Erie Regional Laboratory, prepared the

Report concerning a test he performed on the U.S. currency that the police

had seized from Rauch’s person following his arrest.
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[Rauch] suffered any real prejudice due to [] Elsavage’s failure to

testify. Therefore, this claim too is ultimately meritless.

PCRA Court Opinion and Order, 7/21/17, at 4. We agree with the PCRA court’s

rationale and thus affirm on this basis in rejecting Rauch’s second

ineffectiveness claim. See id.; see also Wah, supra. In his third issue, Rauch argues that trial counsel were ineffective to the

extent that they failed to object to portions of the District Attorney’s closing

argument. See Brief for Appellant at 16-17. Specifically, Rauch contends

that trial counsel should have objected to the District Attorney’s following

statement (which we will hereinafter refer to as the “guilt statement”): “If

you see it at all, you might say, we don’t think [Rauch] did it, in which case

you say guilty.” Id. at 16 (quoting N.T., 10/18/13, at 247). Rauch also urges

that trial counsel should have objected to the District Attorney’s statement to

the jury that they must judge the case as though Rauch was the only person

in downtown Clearfield on the night of the robbery (hereinafter referred to as

the “Clearfield statement”). Brief for Appellant at 16; see also N.T.,

10/17/13, at 241. Rauch contends that trial counsel were

unable to provide any reasonable basis for not objecting to the

District Attorney’s [above-mentioned] comment[s,] and

permitting an extremely misleading and confusing statement[,

i.e., the guilt statement,] [to] be told to the jury[, which] indicated

they had no choice but to find [Rauch] guilty[,] and further[,

concerning the Clearfield statement,] trial counsel permitted the

District Attorney to misinform the jury on how they should

evaluate the evidence.

Brief for Appellant at 17.
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In its Opinion and Order, the PCRA court addressed this ineffectiveness

claim as follows:

It is first important to note that the jury was instructed by the

[trial] [c]ourt that the arguments of counsel are not evidence and

that they should not be considered as such.[4] [See N.T.,

10/18/13, at 17.] Further, the District Attorney began his closing

by stating that should he misstate something, the jurors should

rely on their own memories and judgments. [See N.T., 10/17/13,

at 194.]

With regards to the [] aforementioned [guilt] statement, it

would appear that[,] in context, this was a misstatement amongst

a much longer closing argument. While the [PCRA] [c]ourt agrees

that this [guilt] statement, without more, may send a confusing

message, the [c]ourt does not believe that the District Attorney

was indicating to the jurors that they had no choice but to find

[Rauch] guilty. Rather, the jurors would likely have realized the

error in this statement in light of the other portions of the closing,

as well as th[e] [trial c]ourt’s instructions to them. Moreover, had

trial counsel objected to the [guilt] statement, the outcome of the

proceedings would very likely have been the same, and thus, the

[PCRA] [c]ourt does not believe that [Rauch] was prejudiced due

to trial counsel[s’] inaction.

With regards to the [] aforementioned [Clearfield]

statement, the [PCRA] [c]ourt must again view the instruction in

context. The [Clearfield] statement alone may send a misleading

message; however, after putting the [statement] to the jurors into

the broader context of the closing, it is readily apparent that the

[Clearfield statement] is simply a concluding statement to a logical

argument. Prior to instructing the jury to judge the case as

though [Rauch] had been the only person in downtown Clearfield

on the night of the incident, the District Attorney had asked the

jury to consider various pieces of evidence that, when viewed

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4

It is well established that “[t]he law presumes that the jury will follow the

instructions of the court.” Commonwealth v. Spotz, 18 A.3d 244, 296 (Pa.

2011) (citation omitted); see also Commonwealth v. Harris, 884 A.2d 920,

930-31 (Pa. Super. 2005) (stating that cautionary instruction to jury indicating

statements made during closing argument are not evidence to be considered

by the jury, and the fact that the jury is presumed to follow instructions, muted any undue prejudice caused by the prosecution’s statements).
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together, would place [Rauch], and [Rauch] alone, at the scene of

the crime. Further, during the [PCRA] [H]earing in this matter,

Attorney Marshall testified that after hearing the [Clearfield]

statement in context, he likely would not have objected to the

statement. Accordingly, the [PCRA] [c]ourt finds Attorney

Marshall’s failure to object to be reasonable, and does not believe

that Attorney Marshall’s inaction prejudiced [Rauch] in any way.

PCRA Court Opinion and Order, 7/21/17, at 4-5 (footnote added). Our review discloses that the PCRA court’s sound rationale is supported

by the record. Moreover, we agree with its determination that Rauch failed to

meet his burden to prove that trial counsel were ineffective for failing to object

to the District Attorney’s challenged statements. Regardless of whether trial

counsel objected to these statements, there is no reasonable probability that

the outcome of the trial would have been different. See Wah, supra;

see also Commonwealth v. Bishop, 936 A.2d 1136, 1140 (Pa. Super.

2007) (stating that where, as here, “the evidence of guilt is overwhelming, counsel’s purported ineffectiveness fails the prejudice prong.”) (citation

omitted). Accordingly, Rauch’s third issue fails.

In his fourth and final claim, Rauch asserts that he is entitled to relief

based upon the cumulative effect of all of his prior ineffectiveness claims. See

Brief for Appellant at 18.

The Pennsylvania Supreme Court

has repeatedly held that no number of failed ineffectiveness

claims may collectively warrant relief if they fail to do so

individually. Commonwealth v. Johnson, 600 Pa. 329, 966

A.2d 523, 532 (Pa. 2009). Thus, to the extent claims are rejected

for lack of arguable merit, there is no basis for an accumulation

claim. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d

640, 671 (Pa. 2008). When the failure of individual claims is
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grounded in lack of prejudice, however, then the cumulative

prejudice from those individual claims may properly be assessed.

Johnson, 966 A.2d at 532 (citing Commonwealth v. Perry, 537

Pa. 385, 644 A.2d 705, 709 (Pa. 1994), for the principle that a

new trial may be awarded due to cumulative prejudice accrued

through multiple instances of trial counsel’s ineffective

representation).

Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012); see also

Commonwealth v. Bomar, 104 A.3d 1179, 1216 (Pa. 2014) (same).

Here, we conclude that none of Rauch’s ineffectiveness claims are of

arguable merit. See Sattazahn, supra. Nevertheless, “to the extent we

have individually rejected [Rauch’s] claims of ineffectiveness based on a lack

of prejudice, we now hold that they do not prejudice him when considered in

the aggregate.” Commonwealth v. Smith, 2018 PA Super 60, at *40 (Pa.

Super. 2018); see also Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa.

2012). Accordingly, Rauch’s final issue fails, and we thus affirm the PCRA

court’s Order dismissing Rauch’s first PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/15/2018