J-S29006-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

FREDERICK WALTER 

 Appellant No. 919 WDA 2014 

Appeal from the Order April 24, 2014 

In the Court of Common Pleas of Venango County 

Criminal Division at No(s): CP-61-CR-0001011-2003 

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.

*

 

MEMORANDUM BY PANELLA, J. FILED JULY 14, 2015 

 Appellant, Frederick Walter, appeals from the order denying his 

petition pursuant to the Post Conviction Relief Act (“PCRA”). On appeal, 

Walter argues that the PCRA court erred in concluding that trial counsel was 

not ineffective for failing to object to statements made by the prosecutor at 

sentencing and for failing to request a mistrial based upon the cumulative 

effect of multiple alleged discovery violations. After careful review, we 

affirm. 

 After his first trial ended in mistrial due to jury deadlock, a second jury 

convicted Walter of involuntary deviate sexual intercourse, aggravated 

indecent assault, criminal attempt to commit aggravated indecent assault, 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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corruption of minors, and two counts of indecent assault. On July 23, 2007, 

the trial court sentenced Walter to an aggregate term of imprisonment of 11 

1/2 years to 24 years.1 Walter subsequently filed a pro se PCRA petition. 

 The PCRA court appointed counsel to represent Walter, and counsel 

filed an amended PCRA petition. The PCRA court held a hearing on the 

amended petition, and on April 24, 2014, entered an order dismissing it. 

This timely appeal followed. 

 On appeal, Walter presents two challenges to the PCRA court’s 

decision. In both arguments, Walter claims that trial counsel was 

ineffective. 

Our standard of review of a PCRA court’s denial of a petition for postconviction relief is well-settled. We must examine whether the record 

supports the PCRA court’s determination and whether the PCRA court’s 

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d 

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed 

unless there is no support for the findings in the certified record. See 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our 

scope of review is limited by the parameters of the PCRA. See 

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005). 

____________________________________________ 

1

 The original sentence contained a mathematical error in calculating the 

aggregate sentence. On September 18, 2007, this error was formally 

corrected through an amended sentencing order. 
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 To be eligible for relief under the PCRA, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from one of the errors listed in 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii). 

See Commonwealth v. Albrecht, 720 A.2d 693, 698 (Pa. 1998). Under 

section 9543(a)(2)(ii), a claim of ineffective assistance of counsel is 

cognizable if it implicates the adjudication of guilt. 

In addressing Walter’s claim of counsel’s ineffectiveness, we turn to 

the following principles of law: 

In order for Appellant to prevail on a claim of ineffective 

assistance of counsel, he must show, by a preponderance of the 

evidence, ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place. Appellant must demonstrate: 

(1) the underlying claim is of arguable merit; (2) that counsel 

had no reasonable strategic basis for his or 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. 

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005) 

(internal citations omitted). Moreover, “[w]e presume counsel is effective 

and place upon Appellant the burden of proving otherwise.” 

Commonwealth v. Springer, 961 A.2d 1262, 1267-1268 (Pa. Super. 

2008) (citations omitted).. This Court will grant relief only if an appellant 

satisfies each of the three prongs necessary to prove counsel ineffective. 

See Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007). Thus, 
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we may deny an ineffectiveness claim if “the evidence fails to meet a single 

one of these prongs.” Id., at 321 (citation omitted). 

 In his first challenge, Walter contends that trial counsel was ineffective 

for failing to object to statements made by the prosecutor at sentencing. 

Specifically, Walter highlights the prosecutor’s assertion that Walter 

threatened the minor victim that he would harm her mother if she told 

anyone about the abuse he perpetrated against her. Walter contends that 

this assertion is unsupported by any evidence of record. 

 We need not reach the substance of this argument, as we agree with 

the PCRA court that Walter has failed to establish that he was prejudiced by 

any such failure on trial counsel’s part. The sentence imposed by the trial 

court consisted of standard range sentences and mandatory minimums. In 

imposing this sentence, the trial court stated 

Alright, Mr. Walter, the theme of the sentencing here is going to 

be standard range sentences. The sentences are going to be 

driven by the guidelines. I don’t view your behavior as much 

different from what the law contemplates when the guidelines 

were established. I’m sentencing to the findings of the jury and 

again, as I’ve just stated, the sentences are all in the standard 

range of the guidelines. 

... 

Accepting the jury’s findings as fact in this case you’ve done 

incredible damage and the damage has essentially ripped your 

family. 

N.T., Sentencing, 7/13/07, at 137-138. 
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Initially, we note that “it is well-settled that arguments of counsel are 

not evidence.” Com. v. Puksar, 951 A.2d 267, 280 (Pa. 2008). Even 

assuming that the prosecutor’s assertion that Walter threatened the victim’s 

mother lacked evidentiary support, there is no evidence that the trial court 

was influenced by the prosecutor’s assertion. Indeed, the trial court was 

well aware of all of the allegations in the case anyway, as it had sat through 

the trial of the case and heard the testimony that allegedly supported the 

prosecutor’s argument. Walter has therefore failed to establish the third 

prong of his ineffective assistance of counsel claim. Thus, we conclude that 

no relief is due on Walter’s first issue on appeal.

 Next, Walter argues that the PCRA court erred in concluding that trial 

counsel was not ineffective for failing to request a mistrial based upon the 

cumulative effect of multiple alleged discovery violations on the part of the 

Commonwealth. 

 Importantly, Walter’s argument is not that trial counsel failed to 

request a mistrial for each of the underlying alleged discovery violations. 

Walter concedes that trial counsel requested a mistrial each time he 

concluded that the Commonwealth had failed to produce in discovery 

evidence that it was presenting at trial. See Appellant’s Brief, at 9. Walter’s 

argument is that trial counsel failed to request a mistrial based upon the 

cumulative effect of all of the alleged discovery violations. See id. 

 The fault with Walter’s argument is that 
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“no number of failed [ ] claims may collectively warrant relief if 

they fail to do so individually.” Johnson, supra at 532 (quoting 

Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 

617 (2007)). However, we have clarified that this principle 

applies to claims that fail because of lack of merit or arguable 

merit. Sattazahn, supra at 671. When the failure of individual 

claims is grounded in lack of prejudice, then the cumulative 

prejudice from those individual claims may properly be assessed. 

Id.; Johnson, supra at 532 (citing Commonwealth v. Perry,

537 Pa. 385, 644 A.2d 705, 709 (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). 

We have denied most of Appellant's claims based on lack of 

merit, and there is no basis for a claim of cumulative error with 

regard to these claims. With regard to the few claims that we 

have denied based on lack of prejudice, see one sub-claim in 

Issue 9, two sub-claims in Issue 11, and Issue 15, we are 

satisfied that there is no cumulative prejudice warranting relief. 

These claims are independent factually and legally, with no 

reasonable and logical connection that would have caused the 

jury to assess them cumulatively. 

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011). 

 Walter identifies two separate instances of alleged discovery violations. 

First, Walter points to a diary entry of the victim’s, which the Commonwealth 

entered into evidence at trial. Trial counsel objected, stating that he had not 

received the diary entry from the Commonwealth in discovery. The trial 

court overruled the objection, concluding that the Commonwealth had not 

committed a discovery violation. See N.T., Trial, 3/6/07, at 183. The trial 

court premised this conclusion upon finding that the prosecutor was credible 

in his claim that diary entry was in the Children and Youth file. See id., at 
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182. Therefore, this claim failed for a lack of merit, not a lack of prejudice, 

and cannot be included in a claim of cumulative prejudice. 

 Walter contends that subsequent disciplinary actions taken against the 

prosecutor contradicts the trial court’s credibility findings. The PCRA court 

notes that, while the prosecutor has admitted to removing original 

documents from the Children and Youth file in other cases, he denied 

removing the diary entry. See N.T., Trial, 3/7/07, at 86. The PCRA court 

found that Walter’s allegation that the prosecutor had “secreted the 

[document] from the CYS files simply is not supported on this record.” N.T., 

PCRA hearing, 4/24/14, at 49. We cannot conclude that this factual finding 

is an abuse of discretion, and therefore conclude that Walter’s argument 

does not alter the trial court’s initial ruling that no discovery violation 

occurred. 

 This leaves Walter with only a single instance of a discovery violation 

objection that the trial court overruled based upon a lack of prejudice: a 

State Trooper’s supplemental report regarding recantation by the victim 

which was not provided to Walter during discovery. Trial counsel objected 

and requested that it be excluded from evidence. See N.T., Trial, 3/8/07, at 

332. The trial court provided a copy of the report to trial counsel, and 

stated “you show me prejudice we’ll deal with it.” Id., at 333. Thus, this 

discovery violation could provide a partial basis for a cumulative prejudice 

claim. However, as noted above, the only other alleged discovery violation 
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was not dismissed for lack of prejudice, but due to a finding that no violation 

had occurred. As a result, Walter’s argument that the cumulative effect of 

multiple alleged violations has no merit, and affords him no relief on appeal. 

 Having found that the PCRA court did not commit an error of law, we 

affirm the order denying Walter relief on his PCRA petition. 

 Order affirmed. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/14/2015