J-S10040-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

DERRICK WILSON MCCRAY

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2441 EDA 2018

Appeal from the PCRA Order Entered July 11, 2018

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0003589-2014

BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED APRIL 09, 2019

Appellant, Derrick Wilson McCray, appeals from the order entered in the 

Bucks County Court of Common Pleas, which denied his first petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

The PCRA court accurately set forth the relevant facts and procedural 

history of this case as follows:

On November 14, 2014, following a three-day jury trial, 

Appellant was convicted of Rape—Threat of Forcible 

Compulsion, Criminal Trespass, Indecent Assault—Threat of

Forcible Compulsion, False Imprisonment, Simple Assault, 

and Possession of Instrument of Crime. The charges 

stemmed from an incident that occurred on March 18, 2014.

On March 18, 2014, [Victim] resided in...Bucks County, with 

her parents, and her daughter. [Victim] and Appellant were 

married in 2012 and had a daughter in August 2013. 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546. 
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However, in December 2013, [Victim] moved out and filed 

for divorce. She stated that even though she wanted a 

divorce, she and Appellant continued to communicate in an 

attempt to co-parent their daughter.

[Victim] typically worked from home.... Her job also entailed 

conducting on site interviews for compliance with 

background checks. On March 18, 2014, [Victim] had five 

interviews scheduled and had to dress professionally that 

day. Around 6:30 a.m., she dropped her daughter off at 

daycare and then returned home to get ready for work.

While she was upstairs getting ready, [Victim] stated that 

she heard a noise downstairs. She thought it may have just 

been the cats because both her parents had left for work. 

After she finished getting ready, [Victim] began to walk 

downstairs. Appellant was standing at the bottom of the 

stairs with a knife in his hand and pointed it towards 

[Victim’s] chest. Appellant told [Victim] that he did not want 

to hurt her, told her to turn around and go back upstairs to 

her bedroom. 

Appellant followed her to her bedroom and instructed 

[Victim] to take off her clothes. As she began to comply, 

she stated that she did not want to do this. Appellant put 

the knife to one of her blouse buttons, flicked the button, 

and instructed her to do what he said and she would make 

it out alive. After [Victim] undressed, Appellant instructed 

her to turn around and bend over. He then put his penis in 

her vagina. After a few minutes, he had [Victim] turn 

around and get on her knees, and then he ejaculated onto 

her face. [Victim] asked for Appellant to get her a tissue, 

which she used to wipe off her face, and asked to get 

dressed. 

[Victim] remained in fear that Appellant might continue to 

harm her so she began to talk about their daughter. She 

also gave him a picture of their daughter that was on her 

bedroom mirror. While talking, Appellant told [Victim] that 

he got the knife from a friend’s house and had entered the 

house through the basement window in the laundry room. 

Appellant also stated that he was working and living with his 

girlfriend in ..., PA. [Victim] stated that Appellant was 

wearing a tan cartwright hat, gray hoodie that had fur 
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around the hood, light gray jeans, and blue gloves. [Victim] 

persuaded Appellant to leave before her parents returned 

home. As Appellant was leaving, [Victim] let him take a 

water bottle that was on the kitchen table and she also saw 

him grab a black bag off the recliner. After Appellant left, 

she called 911 to report the incident.

...Police responded to the scene and [Victim] agreed to be 

transported to the ...Hospital for a SANE exam. [Victim] was 

then transported to the...Police Department to provide her 

statement.

During the investigation on March 18, 2014, the...police 

searched [Victim’s] parents’ house for evidence. They 

collected a tissue on the dresser that [Victim] stated she 

used to wipe her face, and also swabbed for fingerprints. 

Later that afternoon, the police contacted Appellant and he 

agreed to come to the station for questioning. Appellant 

also consented to a search of his vehicle and his girlfriend’s 

house. In the car, the police found a water bottle, knives, 

and the picture of the daughter of Appellant and [V]ictim. 

After searching Appellant’s girlfriend’s house, the police did 

not find the sweater, hoodie with fur around the collar, 

jeans, or black bag that [V]ictim described.

At trial, the Commonwealth and Appellant stipulated to the 

fact that as part of the evidence the police collected, a tissue 

from the bedroom dresser contained spermatozoa that 

matched the DNA of [Appellant]. No DNA was detected for 

all other items that were tested: jeans found at Appellant’s 

girlfriend’s house, a knife found in Appellant’s car, a swab 

from the basement window at [Victim’s] parents’ house, and 

a swab from a glass patio. 

Appellant testified during trial that the incident on March 18, 

2014, was arranged and consensual. Appellant testified that 

[Victim] agreed to let Appellant meet her at their daughter’s 

daycare so Appellant could see his daughter for a few 

minutes. After [Victim] took their daughter into daycare, 

Appellant stated that he needed to talk to [Victim] about a 

few things, and they agreed to go back to her parents’ 

house. Appellant testified that he and [Victim] had 

consensual sex, and he entered the house through the front 

door. Appellant testified he left because [Victim] was 
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concerned her parents might return home from work. 

Appellant then testified he went back to his girlfriend’s 

house and told his girlfriend where he went that morning.

Later that afternoon, the police called Appellant because 

they had a concern regarding [Victim]. Appellant agreed to 

go to the police station and his girlfriend accompanied him. 

At first, Appellant lied to the police, stating that he did not 

see [Victim] that day because he knew that he was not 

supposed to have contact with her. After the police told him 

that they knew he had contact with her, broke into her 

house and raped her with a knife, Appellant then spoke to 

the police. He testified that he told the police that [Victim] 

willingly arranged to meet him at their daughter’s daycare, 

they went back to her house where she let him in through 

the front door, and they had consensual sex.

[G.M.], Appellant’s girlfriend at the time of the incident, 

testified that Appellant had been staying at her house and 

got up early on March 18, 2014, to go to work. [G.M.] 

testified that Appellant returned home around 7:40 a.m. 

and told her that he was not needed for work, so he cleaned 

his car. The police contacted [G.M.] in an attempt to reach 

Appellant, and she put Appellant on the phone and then 

accompanied Appellant to the police station. The police 

indicated to [G.M.] that they were looking for a black bag. 

She stated that she did not know anything about it. [G.M.]

also stated that the first time she saw the picture of 

Appellant’s daughter was on March 18, 2014—the same day 

[V]ictim testified to giving it to Appellant.

A few days later, [G.M.] then contacted the police regarding 

a black bag found in her house. [G.M.]’s grandfather who 

also resides with her, testified that at the end of March 

2014, while he was doing laundry, he knocked something 

behind the washing machine. After moving the machine 

out, [G.M.’s grandfather] found a white plastic bag 

containing clothes hidden behind the dryer and sitting on 

top of the dryer vent hose. [He] stated that he thought 

nothing about it because his grandchildren have a habit of 

dropping their stuff off to be washed and stuff does get 

knocked off. [G.M.’s grandfather] testified that he dumped 

the clothing out of the bag into the washer and there was a 

“jacket with a hood, fur, and a pair of jeans.” [He] washed 
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the clothing because he thought they were his grandson’s 

clothes.

[G.M.’s grandfather] contacted [G.M.] when he also noticed 

a black satchel fall out of the white bag. [G.M.] contacted 

the police who came to the house to collect the items. 

Appellant testified that he believed that [G.M.] lied when 

she testified that Appellant told her he had work the 

morning of March 18, 2014, and returned by 7:40 a.m. 

because he wasn’t needed. In addition, Appellant believes 

that someone, most likely [G.M.], put the clothes behind the 

washer and dryer to get him.

[O]n March 18, 2014, Appellant had a no contact order with 

[V]ictim. This no contact order and temporary Protection 

from Abuse Order arose from an incident that occurred on 

February 14, 2014.

On February 14, 2014, [Victim] agreed to help Appellant pay 

the bill for his phone. They arranged to meet at their old 

apartment where Appellant was still living. Appellant 

wanted to spend some time with [Victim], and she agreed 

to work from the [a]partment that day. Both Appellant and 

[Victim] testified that they communicated after [Victim] 

moved out and filed for divorce. On February 14, 2014, 

Appellant and [Victim] were in communication and Appellant 

left to run some errands. [Victim] left the apartment that 

afternoon but soon returned to retrieve the cat litter she had 

left there.

Appellant was in the apartment when [Victim] returned to 

get the bags. He asked [Victim] to spend more time with 

him so they could work things out and not get a divorce. 

[Victim] stated, “No, I can’t. I have to go” and began to 

walk around Appellant to leave. As she walked by, Appellant 

wrapped his arm around her throat, covered her nose and 

mouth with his other hand, and threw her to the ground. 

Appellant straddled [Victim] and stated that she was not 

going to leave him, he was not going to let her leave, and 

that she could not leave him. [Victim] was able to get 

Appellant’s hands off her face to breathe and was able to 

get halfway up off the ground.

However, Appellant again wrapped his arm around her 
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throat, covered her nose and mouth, and dragged her down 

the hallway into the bathroom. After [Victim] was able to 

breathe again, she was able to convince Appellant to let her 

go and not hurt her. [Victim] then began to leave the room 

and walked down the hallway, but Appellant, for a third 

time, grabbed her from behind and dragged her into the 

bedroom. [Victim] begged [Appellant] to let her go and 

stated that she would not call the cops. [Victim] also told 

Appellant that she needed to get their daughter from 

daycare and would bring her back so they could be a family.

[Victim] was then able to leave, drive to a nearby parking 

lot, and call 911. [Victim] spoke to the police, filed a report, 

and her neck bruises were photographed. Appellant was 

criminally charged with assaulting [Victim] during this 

incident. The Montgomery County Court of Common Pleas 

entered a temporary Protection from Abuse Order, where 

Appellant was ordered not to have contact with [Victim]. In 

order to have bail set, Appellant had to abide by the no 

contact order. This no contact order and temporary PFA 

were in effect at the time of the March 18, 2014 incident 

that was prosecuted within Bucks County.

* * *

For the criminal charges that arose in Bucks County 

[regarding the March 18, 2014 incident], Appellant was 

convicted by a jury. He was represented by [the] Bucks 

County Public Defender...during pre-trial motions, trial, 

sentencing, and the filing of post-sentence motions. ... 

Appellant was sentenced on March 23, 2015, to serve an 

aggregate sentence of...nine (9) to twenty-four (24) years 

in a state correctional institution.

Appellant subsequently filed timely Post-Sentence Motions 

on March 30, 2015[, which were denied by operation of law] 

on August 20, 2015. On September 14, 2016, the Superior 

Court affirmed [the judgment of sentence]. The 

Pennsylvania Supreme Court denied Appellant’s Petition for 

Allowance of Appeal [on March 7, 2017. See 

Commonwealth v. McCray, 158 A.3d 178 (Pa.Super. 

2016), appeal denied, 641 Pa. 274, 167 A.3d 711 (2017)]. 

Appellant then [timely] filed his first pro se [PCRA] Petition 
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on May 30, 2017. He was appointed counsel and an 

amended PCRA was filed [on] November 13, 2017. New 

counsel entered his appearance on January 23, 2018. 

Appellant was permitted to file a second amended PCRA 

submitted April 2, 2018. [On June 19, 2018, the court 

issued notice of its intent to dismiss the petition without a 

hearing per Pa.R.Crim.P. 907. Appellant did not respond]. 

The PCRA petition was dismissed on July 11, 2018.... On 

August 7, 2018, Appellant timely filed a Notice of Appeal to 

the Superior Court. 

(PCRA Court Opinion, filed October 22, 2018, at 1-8) (internal citations 

omitted). On August 10, 2018, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

which Appellant timely filed on August 20, 2018. 

Appellant raises three issues for our review:2

DID THE [PCRA] COURT ERR IN ITS DETERMINATION, 

WITHOUT A HEARING, THAT TRIAL COUNSEL PROVIDED TO 

APPELLANT EFFECTIVE REPRESENTATION AT TRIAL 

DESPITE THE FACT THAT TRIAL COUNSEL OFFERED NO 

OPPOSITION TO THE COMMONWEALTH SEEKING TO ADMIT 

PRIOR BAD ACTS EVIDENCE AGAINST APPELLANT AT THE 

TIME OF TRIAL, DID NOT REQUEST TO LIMIT THE AMOUNT 

OF SUCH EVIDENCE PRESENTED AGAINST APPELLANT, AND 

DID NOT REQUEST A CURATIVE INSTRUCTION TO THE JURY 

REGARDING THE PRESENTATION OF SUCH EVIDENCE? 

DID THE [PCRA] COURT [ERR] IN ITS DETERMINATION 

WITHOUT A HEARING, THAT TRIAL COUNSEL PROVIDED TO 

APPELLANT EFFECTIVE REPRESENTATION, WHEN SHE 

FAILED TO OFFER INTO EVIDENCE THE FACT THAT THE 

VICTIM, APPELLANT’S WIFE, WAS INVOLVED WITH 

APPELLANT IN ACTIVE CUSTODY LITIGATION AND THAT

THE VICTIM HAD SOUGHT AND BEEN DENIED A PRIOR PFA 

FROM THE MONTGOMERY COUNTY COURT, PRIOR TO THE 

DATE OF THE ALLEGED CRIME?

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2 We have reordered Appellant’s issues.
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DID THE [PCRA] COURT ERR IN DENYING APPELLANT AN 

EVIDENTIARY HEARING PURSUANT TO THE POST 

CONVICTION RELIEF ACT INASMUCH AS APPELLANT HAD 

ISSUES MERITORIOUS OF REVIEW THAT COULD ONLY BE 

PROPERLY CONSIDERED FOLLOWING AN EVIDENTIARY 

HEARING?

(Appellant’s Brief at vi). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the record evidence supports the court’s determination 

and whether the court’s decision is free of legal error. Commonwealth v. 

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 

319 (2008). This Court grants great deference to the findings of the PCRA 

court if the record contains any support for those findings. Commonwealth 

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 

A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of 

right; the PCRA court can decline to hold a hearing if there is no genuine issue 

concerning any material fact, the petitioner is not entitled to PCRA relief, and 

no purpose would be served by any further proceedings. Commonwealth v. 

Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997). “To obtain reversal of a 

PCRA court’s decision to dismiss a petition without a hearing, an appellant 

must show that he raised a genuine issue of fact which, if resolved in his favor, 

would have entitled him to relief, or that the court otherwise abused its 

discretion in denying a hearing.” Commonwealth v. Cousar, 638 Pa. 171, 

188, 154 A.3d 287, 297 (2017). 
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For purposes of disposition, we combine Appellant’s issues. Appellant 

argues trial counsel failed to object to the Commonwealth’s introduction of 

“prior bad acts” evidence concerning the February 14, 2014 incident between 

Appellant and Victim. Appellant asserts trial counsel’s failure to object 

eliminated the court’s obligation to conduct a balancing test to decide whether 

the probative value of the evidence outweighed its prejudicial effect. 

Appellant contends that whether the evidence was admissible for an 

appropriate reason (i.e., to demonstrate motive or intent) creates a question 

of material fact that must be examined at a PCRA hearing. Appellant claims 

trial counsel also failed to cross-examine Victim about the parties’ ongoing 

custody litigation or Victim’s prior failed attempt to obtain a PFA order against 

Appellant at the outset of their divorce litigation. Had trial counsel explored 

these issues, Appellant avers the jury would have seen that Victim had a 

motive to fabricate her testimony. Appellant insists his claims call into 

question trial counsel’s strategy, which required the PCRA court to hold an 

evidentiary hearing. Appellant concludes he raised colorable claims of trial 

counsel’s ineffectiveness, and this Court must remand for an evidentiary 

hearing. We disagree.

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Gonzalez, 858 A.2d 1219, 1222 (Pa.Super. 2004), 

appeal denied, 582 Pa. 695, 871 A.2d 189 (2005). To prevail on a claim of 

ineffective assistance of counsel, a petitioner must show, by a preponderance 
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of the evidence, ineffective assistance of counsel which, in the circumstances 

of the particular case, so undermined the truth-determining process that no 

reliable adjudication of guilt or innocence could have taken place. 

Commonwealth v. Turetsky, 925 A.2d 876 (Pa.Super. 2007), appeal 

denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate: 

(1) the underlying claim has arguable merit; (2) counsel lacked a reasonable 

strategic basis for her action or inaction; and (3) but for the errors and 

omissions of counsel, there is a reasonable probability that the outcome of the 

proceedings would have been different. Id. at 880. “The petitioner bears the 

burden of proving all three prongs of the test.” Id. Importantly, “PCRA 

hearings are not discovery expeditions, but are conducted when necessary to 

offer the petitioner an opportunity to prove his explicit assertion of 

ineffectiveness raising a colorable claim about which there remains an issue 

of material fact.” Cousar, supra at 192, 154 A.3d at 299. Thus, “if the record 

reflects that the underlying issue is of no arguable merit or no prejudice 

resulted, no evidentiary hearing is required.” Commonwealth v. 

Bauhammers, 625 Pa. 354, 385, 92 A.3d 708, 726-27 (2014). 

Pennsylvania Rule of Evidence 404(b) provides as follows:

Rule 404. Character Evidence; Crimes or Other Acts

* * *

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other 

act is not admissible to prove a person’s character in order 
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to show that on a particular occasion the person acted in 

accordance with the character.

(2) Permitted Uses. This evidence may be admissible for 

another purpose, such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident. In a criminal case this evidence 

is admissible only if the probative value of the evidence 

outweighs its potential for unfair prejudice.

* * *

Pa.R.E. 404(b)(1)-(2). In other words, evidence of other crimes or bad acts 

is admissible if offered for a non-propensity purpose, such as proof of an 

actor’s knowledge, plan, motive, identity, or absence of mistake or accident. 

Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005), cert. denied, 

549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 (2006). Additionally, “our courts 

will allow evidence of prior bad acts where the distinct crime or bad act was 

part of a chain or sequence of events which formed the history of the case 

and was part of its natural development.” Commonwealth v. Drumheller, 

570 Pa. 117, 137, 808 A.2d 893, 905 (2002), cert. denied, 539 U.S. 919, 123 

S.Ct. 2284, 156 L.Ed.2d 137 (2003) (holding admission of victim’s prior PFA 

petitions against appellant was proper to demonstrate continual and 

escalating nature of appellant’s abuse of victim). 

When offered for a legitimate purpose, evidence of prior crimes or bad 

acts is admissible if its probative value outweighs its potential for unfair 

prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014), 

cert. denied, ___ U.S. ___, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014). “‘[U]nfair 
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prejudice’ means a tendency to suggest decision on an improper basis or to 

divert the jury’s attention away from its duty of weighing the evidence 

impartially.” Id. at 159, 84 A.3d at 666 (quoting Pa.R.E. 403, Comment). 

Evidence will not be prohibited merely because it is harmful 

to the defendant. This Court has stated that it is not 

required to sanitize the trial to eliminate all unpleasant facts 

from the jury’s consideration where those facts are relevant 

to the issues at hand and form part of the history and 

natural development of the events and offenses for which 

the defendant is charged. Moreover, we have upheld the 

admission of other crimes evidence, when relevant, even 

where the details of the other crime were extremely 

grotesque and highly prejudicial.

Commonwealth v. Tyson, 119 A.3d 353, 360 (Pa.Super. 2015) (en banc) 

(internal citation omitted). “Additionally, when examining the potential for 

undue prejudice, a cautionary jury instruction may ameliorate the prejudicial 

effect of the proffered evidence. ... Jurors are presumed to follow the trial 

court’s instructions.” Hairston, supra at 160, 84 A.3d at 666. 

Instantly, the PCRA court addressed Appellant’s claims as follows:

Here, Appellant asserts he should be granted relief due to 

ineffective assistance of counsel. This [c]ourt has declined 

to hold an evidentiary hearing because the [c]ourt could 

determine from Appellant’s Second Amended Petition for 

Relief that Appellant has failed to overcome the presumption 

that counsel is effective and could not meet the three prong 

test.

* * *

... Appellant asserts that his trial counsel was ineffective 

because she allowed prior bad acts to be admitted without 

requesting to limit the amount of evidence presented and 

failed to request a jury limiting instruction. From the record, 

this [c]ourt determined that this claim is without merit and 
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Appellant did not suffer actual prejudice as a result of 

counsel’s performance since the result would not have been 

different.

During the pre-trial portion of this case, the Commonwealth 

submitted Motions in Limine for the admission of Appellant’s 

prior bad acts. The Commonwealth argued that while prior 

bad acts are generally not admissible they may be admitted 

to prove motive, intent, plan, preparation, and knowledge. 

It was [the Commonwealth’s] argument that the February 

14, 2014 allegations were admissible at trial to demonstrate 

intent:

[I]t shows that [V]ictim went to extensive lengths 

within the law to try to keep [Appellant] from having 

any further contact with her and that the sexual 

encounter on March 18, 2014, could not in any way 

be considered consensual sex. This testimony shows 

evidence of [Appellant’s] intent and knowledge, i.e., 

that [Appellant] did not intend to engage in 

consensual sex with [V]ictim on March 18, 2014. The 

testimony about the prior incident and the PFA also 

show [Appellant’s] motive and intent to break into 

[V]ictim’s home to surreptitiously gain access to her 

as he was not permitted to have any legal contact with 

her. Commonwealth’s Motion in Limine to Admit Prior 

Bad Acts 7/18/2014.

Appellant is correct in stating that trial counsel did not object 

to [the Commonwealth’s] motion in limine. However, trial 

counsel’s lack of objection does not rise to ineffective 

counsel because these prior bad acts were admissible to 

show intent.

Appellant does not plead or offer any legal authority that 

would have precluded the prior bad acts that were 

introduced at trial. In addition, he fails to plead or identify 

in what way the prior bad acts should have been limited. 

Essentially, Appellant has set forth a bald claim and fails to 

provide any argument to support the merit to his claim.

Furthermore, the prior bad acts introduced from February 

14, 2014 were admissible under Pennsylvania law [to show 
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the chain or sequence of events that formed the history of 

the case]. 

... While trial counsel may not have asked for the limiting 

instruction at the pretrial motion, she did request it during 

the course of trial. This [c]ourt instructed the jury to 

consider the February 14, 2014 [incident] in a limited 

manner:

You’ve also heard evidence presented by the 

Commonwealth alleging that [Appellant] assaulted 

[Victim] on February 14, 2014, leading to the filing of 

criminal charges and the entry of protection from 

abuse order in Montgomery County. The evidence of 

the February 14, 2014, incident is before you for a 

very limited purpose; that is, for the purpose of 

rebutting the defense contention that the sexual acts 

occurring on March 18th were consensual. 

This evidence must not be considered by you in any 

way other than for this purpose. You must not 

consider this evidence as showing that [Appellant] is 

a person of bad character, or of criminal tendencies 

from which you might be inclined to infer guilt. Its 

sole purpose for your consideration is the 

Commonwealth’s contention that it rebuts the 

defense’s claim of consent. (N.T. Jury Trial, 11/13/14, 

pp 156-57).

These instructions further support the fact that Appellant’s 

ineffective counsel claim is meritless. Even if Appellant’s 

claim [had arguable merit], he would fail to satisfy the third 

prong of the test that the result would have been different.

It is clear that trial counsel did ask for a limiting instruction 

regarding the prior bad acts from February 14, 2014, and 

that the jury was instructed by this [c]ourt to use those acts 

for a very limited purpose. With these limiting instructions, 

Appellant was still found guilty. Therefore, Appellant cannot 

prove that counsel’s action or inaction resulted in a 

prejudicial outcome. Appellant’s failure to satisfy prongs

one and three of the ineffective assistance test results in his 

claim being dismissed. 
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* * *

Appellant [also] asserts [that] trial counsel was ineffective 

when she failed to admit evidence of the custody litigation 

between [V]ictim and Appellant. It is Appellant’s belief that 

the custody litigation serves as an explanation as to why 

[V]ictim would fabricate criminal allegations against 

Appellant. ...

While trial counsel may not have introduced the history of 

the divorce and custody proceedings, the jury heard this 

evidence during direct examination of [V]ictim. In addition, 

on direct examination trial counsel fully explored Appellant’s 

versions of the February 14 and March 18, 2014 incidents.

During Appellant’s testimony, trial counsel elicited from 

Appellant details regarding their marriage and the roller 

coaster of intimacy and jealousy. Furthermore, it was 

elicited from Appellant that he believed [V]ictim fabricated 

the February 14 and March 18, 2014 incidents to keep him 

from his daughter. However, Appellant contradicted his own 

theory by stating [V]ictim did not deny his access to his 

daughter, and he was permitted to visit their child. The 

evidence elicited at trial would discredit or negate any 

impeachment that could have been derived from the 

custody litigation. As such, Appellant’s claim for ineffective 

counsel is meritless.

Appellant also argues that counsel should have offered into 

evidence that [V]ictim had been denied a prior PFA request 

from Montgomery County Court prior to the March 18, 2014 

[incident]. The only evidence of the prior PFA request is the 

docket entry Appellant attached. The docket shows that 

[Victim] filed for a PFA on December 19, 2013. On that 

same day, the temporary order was denied and the PFA 

praecipe to withdraw was submitted. Appellant pleads no 

other facts besides “the victim had filed for Protection from 

Abuse on December 19, 2013...but that request for 

protection was denied.” It is Appellant’s contention that trial 

counsel should have introduced evidence of the withdrawn 

PFA as an explanation for why [V]ictim would fabricate 

criminal allegations. 

This [c]ourt sees no merit in Appellant’s argument. In 
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addition, even if this argument had [arguable] merit, 

Appellant could not satisfy the third prong prejudice 

requirement of the ineffective assistance of counsel test. 

There is not a reasonable probability that the result would 

have been different if trial counsel had elicited that [V]ictim 

had withdrawn her December PFA petition. The jury was 

able to hear from both [V]ictim and Appellant. They were 

made aware of both sides of the story regarding the 

February and March allegations. In addition, Appellant 

conveyed quite strongly that [V]ictim was jealous of his 

current girlfriend he was living with and did not want 

“females” around their daughter.

If the jury was to believe that [V]ictim had fabricated the 

criminal allegations, there was sufficient testimony for the 

jury to do so. They jury chose to find [V]ictim more credible 

[than] Appellant and there is [no] reasonable probability 

that [the jury’s] decision would have been impacted by 

additional testimony regarding the withdrawn PFA petition.

Appellant has failed to meet his burden to overcome the 

presumption that trial counsel was ineffective. For this 

specific claim, he has failed to demonstrate there is 

[arguable] merit. In addition, even if this [c]ourt believes 

the claim had merit, Appellant has failed to satisfy prong 

three of the test. Based on the PCRA petition and the 

exhibits, there is not a reasonable probability that trial 

counsel’s decision to omit the PFA impacted the result of the 

trial. As such, Appellant has not been prejudiced.

(PCRA Court Opinion at 11-16) (some internal citations omitted). The record 

supports the court’s analysis. See Ford, supra. Appellant’s ineffectiveness 

claims lacked arguable merit and prejudice, so the PCRA court properly 

declined to hold an evidentiary hearing. See Cousar, supra; Bauhammers, 

supra. Accordingly, we affirm.

Order affirmed.
J-S10040-19

- 17 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/19