J-S43039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES R. HOUSEHOLDER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 202 WDA 2018

Appeal from the PCRA Order January 9, 2018

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0004746-2012, 

CP-65-CR-0004747-2012, CP-65-CR-0004748-2012

BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 23, 2018

Appellant James R. Householder appeals from the order dismissing his 

first petition pursuant to the Post-Conviction Relief Act1 (PCRA). Appellant 

asserts that his trial counsel was ineffective for failing to cross-examine 

witnesses regarding inconsistencies in their testimony. Appellant also argues

that direct appeal counsel was ineffective for failing to raise the inconsistencies 

in the witnesses’ testimony during the appeal and for a delay in providing 

Appellant with a copy of this Court’s disposition of his direct appeal. Further, 

Appellant contends that the PCRA court failed to consider his response to the 

notice of intent to dismiss his PCRA petition filed pursuant to Pa.R.Crim.P. 907. 

We affirm.

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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This case began when Detective Scott A. Cardenas of the Lower Burrell 

Police Department investigated a report received from Westmoreland County 

Children’s Bureau regarding suspected child sexual abuse of victims S.A., E.B., 

and E.S. A preliminary hearing was held on December 4, 2012, and the 

magisterial district judge held the case for court. A criminal information was 

filed regarding each victim.

On January 28, 2013, the Commonwealth filed notice of its intent to 

consolidate the three above-captioned cases for trial. Jury selection 

commenced on August 4, 2014, and a trial by jury was conducted August 5, 

2014 through August 8, 2014. At trial, the three victims, including Appellant’s 

step-daughter S.A., testified that Appellant repeatedly sexually assaulted

them over the course of twelve years. 

The victims testified to the following incidents:

At case number 4746 C 2012, female victim, S.A., testified that 

she was five years old when [Appellant], her stepfather and whom 

she knew as “dad,” started touching her inappropriately. At the 

time, S.A., her sister, L.A., their mother, and [Appellant] resided 

in Swissvale, Pennsylvania. [Appellant’s] sexual abuse progressed 

when the family moved to Arnold, Pennsylvania. At that time, S.A. 

was in second grade and around seven or eight years old. . . .

Around December of 2003, when S.A. was approximately eight 

years old and in third grade, [Appellant] and S.A.’s mother 

separated and [Appellant] moved into his mother’s house in Lower 

Burrell. S.A. and L.A. would spend each weekend, including 

overnights, and evening weekday visits, with [Appellant] at his 

mother’s house. In the Lower Burrell home, [Appellant], on more 

than one occasion, continued to touch S.A.’s unclothed vagina 

with his hand and penis. When she was approximately eleven to 

thirteen years old, [Appellant] continued touching her in that 
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manner, but he also began to orally lick S.A.’s vagina on numerous 

occasions.

S.A. hit puberty when she was around eleven to thirteen years 

old. Around that time, S.A. started developing breasts and S.A. 

testified that once she developed breasts, [Appellant] would, 

underneath her clothing, touch her breasts with his hands and 

orally lick them. . . . S.A. and E.B. met in sixth grade at school 

and became best friends. When S.A. and E.B. were in eighth or 

ninth grade, E.B. started going to [Appellant]’s mothers’ house in 

Lower Burrell with S.A. and L.A. . . .

* * *

In early 2012, when S.A. was approximately sixteen years old, 

[Appellant] moved into his own apartment in Allegheny Township 

where S.A., L.A., and E.B. continued to visit. At that location, S.A. 

saw [Appellant] expose himself and masturbate in the kitchen in 

front of S.A. and E.B. Although S.A. was not aware because she 

was sleeping, E.B. told S.A. that, while S.A. was sleeping, 

[Appellant] was doing things to her. S.A. did not tell any adult 

about the sexual abuse until, in 2012, E.B. told her boyfriend and 

his family contacted the police. When S.A. became aware that the 

police had been notified, S.A. told her mother about the years of 

sexual abuse, although without E.B.’s disclosure, S.A. had no 

intention of telling anyone.

At Case Number 4748 C 2012, E.S. testified that S.A. and L.A. are 

her cousins and that she knows E.B. as S.A. and L.A.’s friend. In 

approximately 2007 or 2008, when E.S. was in fifth grade and 

about ten or eleven years old, [Appellant] would bring S.A., L.A., 

and E.B. to E.S.’s father’s house in Natrona, PA. [Appellant], S.A., 

L.A., and E.B. would stay overnight at the house for a few days. 

E.S. stated that [Appellant] would invade her personal space and 

touch her in ways that she really didn’t want him to in the house. 

Specifically, E.S. testified that [Appellant] would touch her chest 

and bottom area by grabbing her with his hands. Regarding 

[Appellant] touching her chest, E.S. stated that [Appellant] “would 

pick [her] up and spin [her], or he would grab [her] and not let 

[her] go.” Most of the time, [Appellant] would touch her on top 

of her clothing, however, occasionally he would touch her 

underneath her clothing. . . .

E.S. testified that she saw [Appellant] do the same type of things 

to E.B. and S.A. In the house and on multiple occasions, E.S. saw 

[Appellant] touch E.B.’s chest underneath and on top of her 
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clothing with his hand and saw [Appellant] touch E.B.’s butt and 

crotch on top of her clothing with his hand. . . . E.S. also saw 

[Appellant] grab S.A.’s chest during horseplay and when S.A. was 

sleeping. . . .

At Case Number 4747 C 2012, E.B. testified that she and S.A. 

became friends in sixth grade. During that school year, E.B. 

started sleeping over with S.A. at [Appellant’s] mother[’s] house 

in Lower Burrell. When E.B. was around twelve years old and she 

and S.A. were sleeping on an air mattress at the Lower Burrell 

house, [Appellant] started touching her breasts underneath her 

clothes, but on top of her bra. E B. testified that S.A. said the 

same thing was happening to her. . . .

* * *

E.B. did not disclose the abuse until she had a breakdown during 

a self defense class that she was taking in August of 2012. At that 

time, she disclosed the abuse to her boyfriend and his family, who 

then contacted the police. E.B. testified that she did not want 

[Appellant] to touch her, she did not consent to it, and she only 

returned to the house for the sleepovers because she wanted to 

still be friends with S.A., protect S.A., and make sure S.A. didn’t 

get hurt. E.B. did not disclose the abuse because she was 

concerned that S.A. would be mad at her and because they 

agreed, after disclosing the abuse to each other, that they 

wouldn’t say anything to anyone. E.B. and S.A. have not been 

friends since E.B. reported the abuse. E.B. testified that 

[Appellant] touched her inappropriately from the time she was 

thirteen years old until she was eighteen years old.

Trial Ct. Op., 3/6/15, at 1-10 (citations omitted).

Regarding S.A., the jury found Appellant guilty of attempted rape of a 

child in Arnold and Lower Burrell,2 attempted aggravated indecent assault in 

Swissvale and Arnold, indecent assault-lack of consent in Lower Burrell and 

Allegheny Township, indecent assault of a child in Swissvale, Arnold and Lower 

____________________________________________

2 The location of the charged offense is referenced where the age of the victim 

was established at least in part by the place of the crime.
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Burrell, involuntary deviate sexual intercourse (IDSI)-less than 13 years of 

age in Lower Burrell, aggravated indecent assault in Lower Burrell, 

endangering the welfare of children, indecent exposure, and corruption of 

minors.3 

Regarding E.B., the jury Appellant guilty of attempted aggravated 

indecent assault in Allegheny Township, indecent assault-lack of consent in 

Allegheny Township, indecent assault-forcible compulsion in Lower Burrell, 

Natrona, and Allegheny Township, indecent assault of a child under 16 in 

Lower Burrell and Natrona, and criminal use of a communication facility, 

unlawful contact or communication with a minor, indecent exposure, and 

corruption of minors.4 

Regarding E.S., the jury found Appellant guilty of indecent assault-lack 

of consent, indecent assault of a child, indecent assault of a child under 16, 

and unlawful contact or communication with a minor.5

Gregory Cecchetti, Esq., (trial counsel) represented Appellant at trial. 

Before sentencing, Appellant requested that Attorney Cecchetti withdraw from 

his representation. Attorney Cecchetti did so, and Brian Aston, Esq., 

____________________________________________

3 18 Pa.C.S. §§ 901 and 3121(c), 901 and 3125(b), 3126(a)(1), (7), 3123(b), 

3125(b), 4304, 3127, and 6301, respectively.

4 18 Pa.C.S. §§ 901 and 3125(a), 3126(a)(1), (2), (8), 7512, 6318(a)(1), 

3127, and 6301, respectively. 

5 18 Pa.C.S. §§ 3126(a)(1), (7), (8), and 6318(a)(1), respectively.
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(appellate counsel) was appointed to represent Appellant at sentencing and 

on direct appeal.

On November 24, 2014, the trial court sentenced Appellant to an 

aggregate sentence of twenty-four to forty-eight years of incarceration. 

Appellant filed a post-sentence motion on December 4, 2014, challenging the 

weight and sufficiency of the evidence and asserting that the trial court had 

erred in imposing mandatory minimum sentences under 42 Pa.C.S. § 9718. 

Post-Sentence Mot., 12/4/14, at 1 (unpaginated). Additionally, the postsentence motion asserted that trial counsel was ineffective for failing to 

properly cross-examine the victim-witnesses at trial. Id. at 1-2.

Following a hearing, on March 6, 2015, the trial court granted the postsentence motion as to the illegal imposition of mandatory minimum sentences 

that were imposed for one count of IDSI and one count of aggravated indecent 

assault of a child. Trial Ct. Op., 3/6/15, at 21. The trial court denied 

Appellant’s weight and sufficiency of the evidence claims. Appellant’s 

assertion of trial counsel’s ineffectiveness was not addressed by the trial court. 

Thereafter, on April 14, 2015, the trial court resentenced Appellant to the 

same aggregate sentence of twenty-four to forty-eight years of incarceration.

On June 18, 2015, Appellant filed a petition for allowance of appeal nunc 

pro tunc on the basis that Appellant had not been given his post-sentence 

rights at the resentencing hearing. See Pet. for Allowance of Appeal Nunc Pro 

Tunc, 6/18/15, at 2 (unpaginated). An order granting permission to file an 

appeal was entered on June 22, 2015, and a notice of appeal at each docket 
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was filed the next day. Appellant challenged the weight and sufficiency of the 

evidence to support his convictions. Concise Statement of Errors Complained 

of on Appeal, 7/14/15, at 1-2 (unpaginated). 

As to Appellant’s challenge to the sufficiency of the evidence, he 

contested the proof of the ages of the victims at the time the crimes were 

committed. This Court found that the ages of the victims were “readily 

discernable from the record.” Commonwealth v. Householder, 1001 MDA 

2015, 2016 WL 5266628, at *6 (Pa. Super. filed Sept. 22, 2016) (unpublished 

mem.). 

In challenging the weight of the evidence, among other things, Appellant 

argued that “the testimony between the various alleged victims was 

conflicting.” Id. This Court noted that “Appellant ha[d] not indicated which 

‘inconsistences’ within the nearly 700 pages of the notes of testimony from 

the jury trial render[ed] the victims’ testimony ‘suspect and unreliable.’” Id.

at *7. Additionally, trial counsel questioned the witnesses regarding some 

inconsistences. Id. On this basis, this Court found the verdict was not 

shocking to one’s sense of justice and affirmed the judgment of sentence. Id. 

The pro se PCRA petition giving rise to this appeal was docketed on April 

28, 2017. The PCRA court appointed counsel, who filed a petition to withdraw 

as counsel pursuant to Turner/Finley6 on August 17, 2017. 

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6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On October 6, 2017, the PCRA court entered an order stating its intent 

to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. 

Thereafter, Appellant’s response to the Rule 907 notice was docketed on 

October 26, 2017.7 In his Rule 907 response, Appellant raised the sufficiency 

of the evidence and claimed that trial counsel failed to properly cross-examine 

witnesses at trial. Rule 907 Response, 10/26/17, at 3-4. Appellant disagreed 

with the trial court’s assessment that the inconsistencies in the victims’ 

statements had been previously litigated. Id. at 4. Additionally, Appellant 

raised the issue that he had not received a copy of this Court’s disposition of 

his direct appeal until November 3, 2016, when it was filed on September 22, 

2016. Id. at 5.

On January 10, 2018, the PCRA court entered an order stating that it 

had not received a response to the Rule 907 notice, dismissing the PCRA 

petition, and granting counsel’s petition to withdraw. Appellant filed a timely 

notice of appeal, which was docketed on January 31, 2018. The PCRA court 

did not order Appellant to file a concise statement of errors complained of on 

appeal.

Appellant raises the following questions for our review:

1. Was [trial counsel] ineffective for not bringing up [certain 

inconsistencies] during [Appellant’s j]ury [t]rial on August 4-8, 

2014?

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7 Although entitled “Turner/Finley Brief,” Appellant responded to the Rule 

907 notice in his filing docketed October 26, 2017 (Rule 907 response).
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2. [W]hether [appellate counsel] was ineffective for not showing 

the[] inconsistent and conflicting testimony and statements in 

the appeals process?

3. Was [appellate counsel] ineffective for sending [Appellant] a 

letter saying [that the Superior Court’s decision was enclosed], 

and then apologiz[ing] for the delay because he thought he 

sent it to [Appellant]?

4. Did the [PCRA c]ourt err, because [Appellant sent] a response 

to the Intent to Dismiss the [Appellant’s] PCRA dated 

10/6/2017, in a timely fashion, filed on 10/26/2017?[8]

Appellant’s Brief at 3-4.9

In his first three issues, Appellant asserts that the PCRA court erred in 

dismissing ineffective assistance of counsel claims. The following principles 

govern our review: 

We must examine whether the record supports the PCRA court’s 

determination, and whether the PCRA court’s determination 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.

* * *

It is well-established that counsel is presumed to have provided 

effective representation unless the PCRA petitioner pleads and 

proves all of the following: (1) the underlying legal claim is of 

arguable merit; (2) counsel’s action or inaction lacked any 

objectively reasonable basis designed to effectuate his client’s 

interest; and (3) prejudice, to the effect that there was a 

reasonable probability of a different outcome if not for counsel’s 

error.

____________________________________________

8 We have reordered Appellant’s issues for ease of disposition.

9 Appellant filed an application for relief after he filed his appellate brief in 

which he stated his intent to file a second appellate brief that was doublespaced. Appellant’s application for relief was denied by an order of this Court 

on April 9, 2018. Appellant nevertheless attempted to file a second appellate 

brief. We consider only his first brief in this appeal. 
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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations 

omitted). Counsel cannot be deemed ineffective for failing to pursue a 

meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 

2003) (en banc). We may affirm the PCRA court’s ruling on any basis apparent 

in the record. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 

2009).

In his first issue, Appellant asserts the ineffective assistance of trial 

counsel for failing to cross-examine the victims regarding inconsistencies in 

their testimony.

10

 Appellant’s Brief at 13. According to Appellant, because 

____________________________________________

10 Appellant characterizes the inconsistencies as follows:

1. According to Appellant, S.A. told the police that she did not 

recall E.B. describing certain incidents to her, citing Police 

report #12-298. At trial, however, E.B. testified that “if 

something happened to [S.A. while she was sleeping], I would 

tell her.” N.T. Trial, 8/6/14, at 392.

2. S.A. testified that the first time she talked to E.B. about the 

incidents occurring was at the Pittsburgh Mills Mall, but E.B. 

testified the first time they discussed the incidents was at the 

Lower Burrell house. N.T. Trial, 8/6/14, at 219, 391.

3. The timeframe when S.A. and E.B. indicated they started 

talking to each other about the incidents differed. N.T. Trial, 

8/6/14, at 229, 391.

4. According to Appellant, S.A. testified that the assaults stopped 

when she fractured her ankle, citing to Police report #12-298. 

However, S.A. also testified that nothing was going on 

medically, Prelim. Hr’g, 12/4/12, at 37, and testified that she 

was assaulted after her cast was removed. N.T. Trial, 8/6/14, 

at 244-46. 
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____________________________________________

5. E.B. allegedly indicated that she was not assaulted at a house 

in Lower Burrell, but S.A. was assaulted there. See Prelim. 

Hr’g, at 12/4/12, at 64. At trial, however, E.B. stated that she 

was also assaulted at the Lower Burrell house. N.T. Trial, 

8/6/14, at 367.

6. According to Appellant, citing to Beaver County Children & 

Youth Services report and Police report #12-298, S.A. 

indicated that Appellant forced her to touch Appellant’s 

intimate parts, but also allegedly indicated that Appellant 

would ask her to touch his penis and she refused.

7. At trial, E.B. testified that abuse at Lower Burrell house only 

occurred in one room, but she had previously stated that the 

abuse sometimes happened in the basement. N.T. Trial, 

8/6/14, at 353; Prelim. Hr’g, 12/4/12, at 61.

8. S.A. testified to being touched only with Appellant’s hands at 

the Swissvale house where she had lived with Appellant, but

she had previously stated that he touched her with his penis as 

well. N.T. Trial, 8/6/14, at 234-35; Prelim. Hr’g, 12/4/12, at

11.

9. S.A. testified that her memory was clear that she had been 

abused from the age of five at trial, but she also indicated she 

did not completely remember. N.T. Trial, 8/6/14, at 235;

Prelim. Hr’g, 12/4/12, at 42.

10. S.A. stated that she had seen Appellant touch E.B. at the 

house in Lower Burrell. Prelim. Hr’g, 12/4/12, at 39. At trial, 

however, she testified that she did not see anything bad 

happen between E.B. and the Appellant at the Lower Burrell 

house. N.T. Trial, 8/6/14, at 212.

11. According to Appellant, S.A. stated that Appellant made her 

take her clothes off. At trial, however, S.A. indicated that she 

did not take her clothes off herself. N.T. Trial, 8/6/14, at 242.

12. S.A. testified that at a residence in Natrona, Appellant did 

not engage in horseplay with her, but E.S. testified that 

Appellant had touched S.A. inappropriately at the Natrona 

residence during horseplay. N.T. Trial, 8/6/14, at 263, 289.
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____________________________________________

13. E.S. stated that she awoke to Appellant in the bed with her 

and the other victims and that he was touching E.B.’s back,

Prelim. Hr’g, 12/4/12, at 87, but at trial, she said he was 

touching her butt and her crotch. N.T. Trial, 8/6/14, at 282.

14. E.S. allegedly described Appellant grabbing her breasts at 

the Pittsburgh Mills Mall, citing arrest report 20121116M001. 

At trial, however, E.S. stated that Appellant touched only her 

butt and waist at the Pittsburgh Mills Mall. N.T. Trial, 8/6/14, 

at 295.

15. E.S. testified at trial during cross-examination that 

Appellant touched her underneath her clothes, but she had 

previously stated that Appellant did not touch her underneath 

her clothing. N.T. Trial, 8/6/14, at 287-88.

16. E.B. recalled an incident at Kennywood, allegedly indicating 

that she became upset, Prelim. Hr’g, 12/4/12, at 76, but, at 

trial, she indicated that she had not become upset. N.T. Trial, 

8/6/14, at 382-83.

17. E.B. allegedly told police that she always rode in the front 

seat, citing Police report #12-298. At trial, however, E.B. 

testified to being picked up and sitting in the back seat of the 

car. N.T. Trial, 8/6/14, at 384.

See Appellant’s Brief at 4-11. 

We note that Appellant references a police report, “#12-298,” an “arrest 

report 20121116M001,” and a report by the Beaver County Children and Youth 

Agency on September 7, 2012, none of which are contained in the certified 

record. Additionally, our review reveals that Appellant mischaracterizes the 

record on point 4, see N.T. Trial, 8/6/14, at 246 (indicating that S.A.’s 

testimony showed that it was true both that the assaults continued after her 

cast was removed and that she at times fought back and prevented Appellant 

from touching her), point 5, see N.T. Prelim. Hr’g, 12/4/12, at 64 (indicating 

E.B. testified that she was assaulted at the Lower Burrell house), and point 8, 

see N.T. Trial, 8/6/14, at 235 (indicating S.A. testified that she could not 

remember being touched by Appellant’s other body parts at the Swissvale 

house). 
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the victims were not cross-examined appropriately, he was deprived of his 

Sixth and Fourtheenth Amendment rights under the United States 

Constitution. Id. at 14. 

By way of background, during his cross-examination of the victims, trial 

counsel pointed out several of the inconsistencies that Appellant references. 

Trial counsel cross-examined E.B. about the first time she discussed the 

incidents of sexual abuse with S.A. and the timeframe in which S.A. and E.B. 

indicated they started talking to each other about the incidents. See N.T. 

Trial, 8/6/14, at 229, 391. Trial counsel cross-examined S.A. about her 

statements that the assaults stopped when she fractured her ankle and that 

she was assaulted after the cast was removed. See id. at 244-46. Trial 

counsel also cross-examined S.A. as to her testimony that her memory was 

clear that she had been abused but that she did not completely remember 

everything. See id. at 235. Additionally, trial counsel cross-examined E.S. 

regarding Appellant touching her underneath her clothes despite having said 

he did not previously. See id. at 287-88. 

Trial counsel, outside the presence of the jury, also stated that he had 

a strategy not to ask S.A. about being touched at Swissvale and the

discrepancy between being touched with Appellant’s hands or his penis 

because it would give her the opportunity to clarify, say more about the 
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incidents, and revisit that attempted rape charge.

11

 N.T. Trial, 8/6/14, at 248-

49. 

Additionally, during his closing argument, trial counsel stated the 

following:

Now, there were inconsistencies that were said shortly after my 

client was charged with these crimes. There were inconsistencies 

between some of the witnesses saying what they said under oath 

two years ago and what they are saying this week. Those 

inconsistencies, if you believe they are minor and totally not 

important, you may be free to disregard anything that was said 

about the inconsistencies. But if the inconsistency was significant, 

then you are going to have to rationalize whether somebody’s 

memory two years ago was better than their memory this week. 

So, it is up to you as the finders of fact to determine whether any 

inconsistency is significant or not significant. 

Some of the inconsistences involve whether or not my client 

touched them in an appropriate way—inappropriate, I’m sorry, 

and whether or not my client touched them by force, whether or 

not my client touched them when they were sleeping. Because 

there were differences. And I am hoping that your recollection 

will recall that some of these inconsistencies do not establish that 

my client touched them the way they testified two years earlier. 

N.T. Trial, 8/8/14, at 553-54.

“The scope and vigor of cross-examination is a matter which falls within 

the ambit of sound trial strategy to be exercised by trial counsel alone.” 

Commonwealth v. Molina, 516 A.2d 752, 757 (Pa. Super. 1986). “Claims 

of inconsistent statements must be proven by evidence of record or else claims 

____________________________________________

11 The Commonwealth ultimately withdrew the attempted rape charge at the 

Swissvale location. 
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of ineffectiveness[12]that are based on a witness’s alleged inconsistent 

statements are not properly before a reviewing court.” Commonwealth v. 

Begley, 780 A.2d 605, 635 (Pa. 2001) (citation omitted). Additionally, “trial 

counsel may make a tactical decision not to question witnesses about alleged 

inconsistencies so as not to enable witnesses to clarify their testimony and 

develop plausible explanations for apparent inconsistencies in their 

testimony.” Id. (citation omitted). Further, counsel will not be found to have 

acted unreasonably by “not pressing the witnesses about [minor 

inconsistencies] on cross-examination.” Id. at 636-37 (citation omitted).

In Begley, a defendant who was convicted of kidnapping and murder 

raised claims of ineffectiveness of trial counsel for failing to cross-examine

witnesses at trial as to inconsistencies in their prior statements. Id. at 635-

38. Begley asserted that witnesses made inconsistent statements as between 

statements in police reports and at trial. Id. at 638. However, “the police 

reports were not admitted into evidence and [Begley] fail[ed] to provide . . . 

____________________________________________

12 The PCRA court suggested that ineffective assistance of counsel based on 

inconsistencies in the victims’ testimony had been previously litigated through 

Appellant’s sufficiency and weight of the evidence claims on direct appeal. 

See Notice of Intention to Dismiss Mot. for Post-Conviction Collateral Relief, 

10/5/17, at 3. However, we note that in Commonwealth v. Collins, 888 

A.2d 564 (Pa. 2005), our Supreme Court clarified that ineffectiveness claims 

are distinct from claims raised on direct appeal even if the ineffectiveness 

claim fails for the same factual reason as the direct appeal claims. Collins, 

888 A.2d at 574-75.
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any other factual evidence” to support the claims. Id. Thus, the claims failed 

for lack of arguable merit. Id.

In Commonwealth v. Baez, 720 A.2d 711 (Pa. 1998), the defendant 

was convicted of stabbing the victim to death after raping her. A friend of 

Baez’s witnessed Baez stabbing the victim. Baez, 720 A.2d at 719. At the 

preliminary hearing, he testified that he saw a knife in Baez’s hand, but at 

trial, the witness denied seeing a knife and testified that he only saw Baez’s 

hand moving in a stabbing motion. Id. at 734. In Baez, our Supreme Court 

noted that “[t]rial counsel will not be deemed ineffective for failing to impeach 

a witness when such impeachment would only highlight damaging portions of 

the witness’ testimony,” and “[t]rial counsel acted reasonably in declining to 

pursue the inconsistency, since it would have focused the jury on the 

possibility that [Baez] had a knife in his hand at the time of the murder.” Id.

In Commonwealth v. Greene, 702 A.2d 547 (Pa. Super. 1997), the 

defendant was convicted of robbery and other related offenses. The owner of 

a jewelry store that Greene attempted to rob testified. Greene, 702 A.2d at 

558. As to inconsistencies between the owner’s testimony at the preliminary 

hearing and trial, this Court found that trial counsel was not ineffective for 

failing to cross-examine the storeowner on these matters. Id. This was 

because the storeowner’s testimony was corroborated by two other witnesses, 

and there was no reasonable probability of a different outcome if the witness 

was impeached with his prior testimony. Id.
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Here, certain instances of inconsistency in the victims’ testimony were 

addressed during cross-examination, and, thus, there is no arguable merit as 

to Appellant’s argument regarding those items. See Franklin, 990 A.2d at

797. As to the inconsistences in which Appellant relies on the police and arrest 

reports and the report by the Beaver County Children and Youth Agency, these 

items were not made part of the record and no other evidence was presented 

to show that these inconsistencies existed. Accordingly, this Court cannot

properly consider these alleged inconsistencies. See Begley, 780 A.2d at 

638. 

Regarding S.A.’s account of being touched and whether she was touched 

by Appellant’s hands or his penis, trial counsel stated on the record that he 

had a strategy not to question the victim regarding this discrepancy. See N.T. 

8/6/14, at 248-49. This was a reasonable strategy in that it prevented the 

jury from focusing on this part of the testimony and prevented elaboration 

regarding “damaging portions” of the victim’s statements. See Baez, 720 

A.2d at 734.

As to the remainder of the inconsistences, the victims’ testimony 

corroborated each other, see Greene, 702 A.2d at 558, and the 

inconsistencies were of a minor nature. See Begley, 780 A.2d at 636-37.

Thus, although we decline to find that Appellant’s claims regarding the 

victims’ inconsistent statements were previously litigated, Appellant’s claims 

fail for all of the foregoing reasons. See Wiley, 966 A.2d at 1157.
J-S43039-18

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In his second issue, Appellant asserts that appellate counsel failed to 

raise the inconsistencies in the victims’ testimony during his direct appeal. 

Appellant’s Brief at 13. Following our review, however, we discern no basis to 

conclude that Appellant demonstrated that the outcome of the appeal would 

have been different had appellate counsel raised the alleged inconsistencies. 

See Loner, 836 A.2d at 132.

Next, Appellant contends that appellate counsel provided ineffective 

assistance of counsel by failing to provide Appellant with a copy of this Court’s 

disposition of his direct appeal. As to this issue, Appellant provides no 

argument in his appellate brief. Accordingly, this issue is waived pursuant to 

Pa.R.A.P. 2119(a) (indicating that the argument section of an appellate brief 

shall contain discussion and citation to pertinent authorities for each question 

argued).

Even if this issue were not waived, Appellant does not claim he asked 

appellate counsel to file a petition for allowance of appeal in the Pennsylvania

Supreme Court. Rather, Appellant’s focus in his response to the Rule 907 

notice is solely on the fact that he did not receive a copy of the decision. 

Accordingly, Appellant is entitled to no relief regarding this issue.

In his final issue, Appellant asserts that the PCRA court erred by failing 

to consider his response to the Rule 907 notice of intent to dismiss his PCRA 

petition. As to this issue, Appellant provides no argument in his appellate 

brief. Accordingly, this issue is waived pursuant to Pa.R.A.P. 2119(a).
J-S43039-18

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Even if this issue were not waived, Appellant’s response to the Rule 907 

notice merely repeated the inconsistencies he initially raised in his PCRA 

petition. Thus, Appellant is not entitled to relief based upon the PCRA court’s 

oversight of the fact that he filed a Rule 907 response.

For the foregoing reasons, the PCRA court did not err in dismissing

Appellant’s PCRA petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/23/2018