J-S22024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICARDO PEREZ-TOLEDO

Appellant No. 997 MDA 2016

Appeal from the PCRA Order May 17, 2016

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0001329-2011

BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.: FILED AUGUST 15, 2017

Ricardo Perez-Toledo appeals from the May 17, 2016 order entered in 

the Luzerne County Court of Common Pleas denying his petition pursuant to 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.

This Court, in deciding Perez-Toledo’s direct appeal, set forth the 

following factual and procedural history:

On June 28, 2011, the Luzerne County District Attorney 

filed a [c]riminal [i]nformation charging [Perez-Toledo] 

with [r]ape of a [c]hild and related offenses. [These 

charges stemmed from Perez-Toledo’s repeated sexual 

assault of a minor female victim, S.R.-S. (hereinafter, “the 

victim”), over a five-year period from January 2005 to 

December 2010, during which [the victim] was between 

six and 11 years old. The victim disclosed these assaults 

to her school guidance counselor, who subsequently 

alerted police.] [Perez-Toledo] pleaded not guilty and a 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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jury trial commenced on October 16, 2012. [At trial, the 

victim testified in a manner inconsistent with her testimony 

during the April 27, 2011 preliminary hearing.] On 

October 18, 2012, the jury returned verdicts of guilty on 

[rape of a child, two counts of involuntary deviate sexual 

intercourse with a child, and indecent assault.1] A PreSentence Investigation (PSI) was ordered to be completed 

by the Luzerne County Adult Probation and Parole 

Department, and a sentencing date was scheduled.

A sentencing hearing commenced on March 15, 2013, 

when [Perez-Toledo] stipulated to a determination by the 

Sexual Offenders Assessment Board (SOAB) that he be 

classified as a sexually violent predator. Upon 

consideration of the submissions of counsel, the SOAB 

Report, and a review of the PSI, [the trial court] sentenced 

[Perez-Toledo] to an aggregate term of incarceration of [] 

22 to [] 44 years in a state correctional institution.

Commonwealth v. Perez-Toledo, 738 MDA 2013, unpublished mem. at 1-

2 (Pa.Super. filed June 6, 2014) (quoting Trial Ct. Op., 11/27/13, at 1-2) 

(citations omitted) (some alterations in original). On April 15, 2013, PerezToledo timely filed a notice of appeal, and on June 6, 2014, this Court 

affirmed Perez-Toledo’s judgment of sentence. See id. at 11.

On January 21, 2015, Perez-Toledo timely filed a PCRA petition 

asserting ineffective assistance of trial counsel. On March 23, 2016, the 

PCRA court held a hearing. At the hearing, Perez-Toledo testified and called 

two additional witnesses, but did not call his trial counsel to testify. On May 

17, 2016, the PCRA court denied Perez-Toledo’s petition. On June 14, 2016, 

Perez-Toledo timely filed a notice of appeal.

____________________________________________

1 18 Pa.C.S. §§ 3121(c), 3123(b), and 3126(a)(7), respectively.
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Perez-Toledo raises four issues on appeal:

1. Whether the lower court erred in suggesting a waiver 

of the issues?

2. Whether the lower court erred in concluding that 

[Perez-Toledo] was required to call trial counsel to 

testify?

3. Whether the lower court erred in concluding that 

[Perez-Toledo] had failed to plead that the 

ineffective assistance of trial counsel failed to affect 

the outcome of the trial?

4. Whether the lower court erred in not reaching the 

merits of the issues presented, those issues being as 

follows:

a. Ineffective assistance of counsel in failing to 

object to the admission of the preliminary 

hearing transcript.

b. Ineffective assistance of counsel in failing to 

object to the admission of hearsay testimony 

by 4 witnesses

c. Ineffective assistance of counsel in failing to 

call character witnesses.

Perez-Toledo’s Br. at 4 (unnecessary capitalization omitted; suggested and 

trial court answers omitted).

“Our standard of review from the grant or denial of post-conviction 

relief is limited to examining whether the PCRA court’s determination is 

supported by the evidence of record and whether it is free of legal error.” 

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). 

All but one of Perez-Toledo’s issues challenge the trial court’s denial of 

his ineffective assistance of counsel claims. “To prevail on . . . [ineffective 

assistance of counsel] claims, [the PCRA petitioner] must plead and prove, 
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by a preponderance of the evidence, three elements: (1) the underlying 

legal claim has arguable merit; (2) counsel had no reasonable basis for his 

action or inaction; and (3) [the petitioner] suffered prejudice because of 

counsel’s action or inaction.” Commonwealth v. Spotz, 18 A.3d 244, 260 

(Pa. 2011). “The law presumes counsel was effective[,]” Commonwealth 

v. Miner, 44 A.3d 684, 687 (Pa.Super. 2012), and PCRA petitioners “bear[] 

the burden of pleading and proving each of the three . . . factors by a 

preponderance of the evidence,” Commonwealth v. Perry, 128 A.3d 1285, 

1289 (Pa.Super. 2015), app. denied, 141 A.3d 479 (Pa. 2016). “A claim of 

ineffectiveness will be denied if the petitioner’s evidence fails to meet any of 

these prongs.” Commonwealth v. Williams, 980 A.2d 510, 520 (Pa. 

2009).

I. Pennsylvania Rule of Appellate Procedure 1925(b)

First, Perez-Toledo argues that the PCRA court erroneously suggested 

that Perez-Toledo waived his appellate issues because he failed to include 

them with adequate specificity in his Pennsylvania Rule of Appellate 

Procedure 1925(b) statement.2

“As a general rule, the failure to raise an issue in an ordered Rule 

1925(b) statement results in the waiver of that issue on appeal.” 

Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006). 

____________________________________________

2 While the PCRA court did not expressly find waiver, the 

Commonwealth urges us to rule on that ground. Cmnwlth’s Br. at 6-8.
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“However, when the appellant cannot readily ascertain the reason for a 

ruling, the Rule 1925(b) statement will of necessity explain in general terms 

why a ruling is alleged to be in error.” Commonwealth v. Zheng, 908 

A.2d 285, 287 (Pa.Super. 2006). In Zheng, the appellant was charged with 

a variety of sexual offenses as well as endangering the welfare of a child 

(“EWOC”). Id. at 286. Following a bench trial, the trial court acquitted 

Zheng of the sexual offenses but convicted him of EWOC; at that time, the 

trial court did not issue findings of fact or conclusions of law that explained 

the EWOC conviction. Id. at 287. In his Rule 1925(b) statement, Zheng 

asserted that: the court erred in denying his motion to dismiss, the evidence 

was insufficient to support his conviction, the court should have granted a 

motion for judgment of acquittal made prior to sentencing, and the verdict 

was against the weight of the evidence. Id. In its Rule 1925(a) opinion, the 

trial court explained its reasoning for convicting Zheng of EWOC, noting that 

the child “stayed out late at night and was not properly fed.” Id. at 286. 

On appeal, the Commonwealth argued that Zheng had waived his 

challenges to the trial court’s decision, because his Rule 1925(b) statement 

was too vague. Id. at 287. We disagreed, concluding that

[i]f the reasons for the ruling of the Court are vague, then 

an appellant is forced to file an incomplete Rule 1925(b) 

statement and there is no violation of Rule 1925(b). Just 

as the trial judge cannot be made to guess what an 

appellant is complaining of on appeal, an appellant cannot 

be made to guess what the trial judge is thinking in his or 

her ruling. Counsel then can only do his or her best to 

identify appellant’s complaints. Counsel in this case could 

only state what he was appealing, since the trial judge 
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never made it clear to him why Zheng was found guilty. . . 

. It is impossible to file a Rule 1925(b) statement with 

particular objections to a ruling if the appellant has no way 

of knowing the trial judge’s reasons for the ruling.

Id. at 288. Accordingly, we reviewed Zheng’s claims on the merits.

We conclude that Perez-Toledo’s Rule 1925(b) statement preserved his 

issues for appeal. The PCRA court’s order denying relief did not state the 

court’s reasons for doing so, and the court did not issue findings of fact or 

conclusions of law until its Rule 1925(a) opinion. As in Zheng, Perez-Toledo 

could not have known the reasons for the PCRA court’s ruling until after the 

trial court filed its Rule 1925(a) opinion. Therefore, we review the merits of 

Perez-Toledo’s claims.

II. Failure to Call Trial Counsel

Next, Perez-Toledo argues that the trial court inappropriately required 

Perez-Toledo to present the testimony of trial counsel to prove his 

ineffectiveness claims. Perez-Toledo presented three claims, alleging that 

his trial court was ineffective for: (1) failing to obtain or present character 

witnesses on Perez-Toledo’s behalf; (2) failing to object to Commonwealth 

witnesses’ testimony regarding statements made by the minor victim; and 

(3) failing to object to a portion of victim’s preliminary hearing testimony 

that was read to the jury. According to Perez-Toledo, the PCRA court 

“essentially bases its entire opinion on the idea that [Perez-Toledo] was 

required to present trial counsel as a witness at the PCRA hearing[.]” PerezToledo’s Br. at 13. Perez-Toledo argues that requiring him to present trial 
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court’s testimony would force PCRA counsel “to offer evidence that was very 

likely harmful to [Perez-Toledo] at the time of the PCRA hearing.” Id. at 14.

In Perry, the appellant filed a PCRA petition alleging, among other 

things, that his appellate counsel was ineffective for failing to challenge the 

jury’s receipt of unmarked evidence. 128 A.3d at 1288-89. The PCRA court 

held an evidentiary hearing, but the appellant failed to compel appellate 

counsel’s attendance. Id. at 1288. Instead, trial counsel, who was 

appellate counsel’s colleague from the public defender’s office, testified (1) 

that the trial transcript showed that the jury received unmarked evidence 

and (2) that appellate counsel did not raise the issue on direct appeal. Id. 

Trial counsel then purportedly “concede[d] on behalf of the public defender’s 

office that appellate counsel was ineffective.” Id. at 1288-89. The PCRA 

court granted appellant’s petition, reinstating his appellate rights nunc pro 

tunc. Id. at 1289.

On appeal, we reversed, concluding that “[t]rial counsel’s opinion of 

her colleague’s effectiveness is irrelevant” to evaluating appellate counsel’s 

assistance. Id. at 1290. We explained that “[o]ur Supreme Court has 

cautioned that, ‘as a general rule, a lawyer should not be held ineffective 

without first having an opportunity to address the accusation in some 

fashion.’” Id. (quoting Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 

2012)). However, we did not establish a blanket rule requiring a PCRA 

petitioner to call counsel whose effectiveness is being challenged. Rather, 

we concluded that “the record before us is devoid of any evidence to 
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overcome the presumption that counsel was effective” and appellant’s 

“failure to demonstrate that appellate counsel had no reasonable basis for 

her actions is fatal to his [ineffective assistance of counsel] claim.” Id.

Here, the PCRA court examined Perez-Toledo’s claims within the threefactor ineffectiveness framework and found that Perez-Toledo failed to prove 

by a preponderance of the evidence that trial counsel was ineffective. 

Specifically, the PCRA court noted that “a PCRA petitioner must provide an 

evidentiary basis on which to find trial counsel’s actions unreasonable,” 

Opinion, 9/23/16, at 7 (“1925(a) Op.”) (quoting Commonwealth v. ReyesRodriguez, 111 A.3d 775, 784 (Pa.Super.), app. denied, 123 A.3d 331 (Pa. 

2015)). And because Perez-Toledo failed to call trial counsel, the PCRA court 

“was left to speculate as to whether counsel’s course of action was a matter 

of strategy and the record is devoid of evidence to overcome the 

presumption that trial counsel was effective.” Id. at 8-9. The PCRA court 

concluded that in the absence of trial counsel’s testimony, Perez-Toledo 

could not prove by a preponderance of the evidence that trial counsel was 

ineffective.

We agree with the PCRA court that Perez-Toledo’s failure to call trial 

counsel is fatal to his claim that counsel was ineffective for failing to call 

character witnesses. Without testimony from trial counsel, the PCRA court 

could not determine counsel’s reason for not calling character witnesses; 

indeed, there are a number of reasons why trial counsel might make such a 

strategic choice. See, e.g., Commonwealth v. Van Horn, 797 A.2d 983, 
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988 (Pa.Super. 2002) (finding counsel’s decision not to call character 

witnesses reasonable where appellant had prior convictions for burglary and 

statutory rape); Commonwealth v. Ervin, 766 A.2d 859, 866 (Pa.Super. 

2000) (finding counsel’s reason for not calling character witnesses 

associated with children’s events in child molestation case reasonable where 

counsel considered witnesses inappropriate in light of charges against 

appellant). Because trial counsel did not testify, it was impossible for the 

PCRA court to determine whether or not the failure to call character 

witnesses was the product of a reasonable strategic choice. Therefore, 

Perez-Toledo failed to meet his burden of showing that counsel had no 

reasonable basis for his actions, and we conclude that the PCRA court did 

not err in concluding that counsel was not ineffective for failing to call 

character witnesses. See Williams, 980 A.2d at 520.

In contrast, we conclude that Perez-Toledo’s failure to call trial counsel 

at the PCRA hearing is not by itself fatal to his claims regarding trial 

counsel’s ineffectiveness for failing to object to testimony relating the 

victim’s out-of-court statements. Although generally PCRA courts “should 

not glean from the record whether counsel had a reasonable basis for his 

action or inaction absent an evidentiary hearing,” Commonwealth v. 

Hanible, 30 A.3d 426, 442 (Pa. 2011), this Court has found some actions 

taken by counsel as per se unreasonable, such as when counsel fails to 

investigate known witnesses, see Commonwealth v. Stewart, 84 A.3d 

701, 712 (Pa.Super. 2013). Here, Perez-Toledo claims that counsel failed to 
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object to critical testimonial evidence. If the testimony in question were 

subject to valid objection, it would be difficult for us to conclude that counsel 

had a reasonable basis for his actions. Thus, the PCRA court erred in 

dismissing Perez-Toledo’s claims regarding the admission of the victim’s 

statements based on his failure to meet the second prong, without 

considering the merits.3 We therefore review the merits of Perez-Toledo’s 

claims regarding the admission of the victim’s statements.

III. Admission of Victim’s Statements

Perez-Toledo asserts that his trial counsel was ineffective for failing to 

object to testimony by four Commonwealth witnesses regarding prior 

inconsistent statements made by the minor victim. Perez-Toledo argues 

that such statements were inadmissible hearsay, and not admissible under 

the Tender Years Act, 42 Pa.C.S. §§ 5981-88, and trial counsel therefore 

should have objected to the admission of the statements.

We conclude that Perez-Toledo’s argument does not merit relief. First, 

the record shows that for three of the four witnesses, the trial court 

admitted this evidence for the limited purpose of impeachment and 

instructed the jury that it could only consider the victim’s prior inconsistent 

____________________________________________

3 While the trial court dismissed Perez-Toledo’s claims because he 

failed to prove his ineffectiveness claims by a preponderance of the 

evidence, its opinion primarily focused on Perez-Toledo’s failure to call trial 

counsel at the PCRA hearing.
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statements for that limited purpose. See N.T. 10/17/12, at 55-56, 62, 66, 

104 (“N.T. Trial”).4 Thus, these statements were not hearsay, as the trial 

____________________________________________

4 The last of these witnesses was Gary Lawrence, M.D., the physician 

who examined the minor victim. At the end of Dr. Lawrence’s testimony, 

the trial court instructed the jury that it could only use the victim’s 

statements to Dr. Lawrence for impeachment purposes. However, on the 

Commonwealth’s motion, the trial court amended its instruction to the jury 

such that it could consider as substantive evidence the signs and symptoms 

described by the victim to Dr. Lawrence pursuant to Pennsylvania Rule of 

Evidence 803(4):

The jury has returned and we are ready to proceed. 

The Commonwealth having rested their case at this time, I 

do want to give the members of the jury just some 

clarification of my instruction regarding the last witness, 

Dr. Lawrence’s testimony.

There was testimony provided by Dr. Lawrence and I 

had given you a prior instruction, which I just want to 

clarify. The testimony or evidence that was presented by 

Dr. Lawrence concerning evidence related to past or 

present symptoms of [the victim] or concerning diagnosis 

or history or causation of her need for treatment by Dr. 

Lawrence are admissible and may be considered by you as 

evidence in this case.

That portion of his testimony, however, that related to 

identity of anyone who may have caused any injury or any 

symptom for which [the victim] was receiving treatment 

may only be considered by you for the very limited 

purpose to help you judge simply the credibility and weight 

of the testimony given by [the victim] since that would 

have constituted a statement on an earlier occasion that 

was inconsistent with the testimony she provided her in 

this trial.

So that portion of Dr. Lawrence’s testimony may only 

be considered by you to help you judge the credibility and 

weight of the testimony of [the victim] given at this trial.

(Footnote Continued Next Page)
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court prohibited the jury from using the statements as proof of the truth of 

the matter asserted therein. See Pa.R.E. 613 cmt. (“To be used for 

impeachment purposes, an inconsistent statement need not satisfy the 

requirements of Pa.R.E. 803.1(1)(A)-(C)[,]” which governs the admissibility 

of prior inconsistent statements for substantive purposes). In addition, 

because the statements were not used to prove the truth of the matter 

asserted, or in the case of Dr. Lawrence were admitted on an independent 

basis, see supra note 3, the tender years statute was not implicated. See

42 Pa.C.S. § 5985.1 (“An out-of-court statement made by a child victim, 

who at the time the statement was made was 12 years of age or younger, 

describing . . . offenses enumerated in 18 Pa.C.S. Ch[.] . . . 31 (relating to 

sexual offenses) . . ., not otherwise admissible by statute or rule of 

evidence, is admissible in evidence in any criminal or civil proceeding if . . 

.”) (emphasis added). Because the underlying claim lacks arguable merit, 

we conclude that counsel was not ineffective for failing to object to the four 

witnesses’ testimony as to the minor victim’s prior inconsistent statements. 

See Commonwealth v. Koehler, 36 A.3d 121, 140 (Pa. 2012).

Next, Perez-Toledo argues that trial counsel was ineffective for failing 

to object to the admission of the victim’s preliminary hearing testimony, 

which he claims was objectionable on two separate grounds. First, he 

(Footnote Continued) _______________________

N.T. Trial at 114-16. Perez-Toledo does not challenge on appeal the trial 

court’s supplemental instruction as it relates to Rule 804(b).
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contends that the Commonwealth offered the preliminary hearing testimony 

as extrinsic evidence of a prior inconsistent statement, which required the 

Commonwealth to confront the victim by showing her the preliminary 

hearing transcript and its contents. Perez-Toledo asserts that the 

Commonwealth merely disclosed the existence of the testimony, which failed 

to meet the procedural requirements of Pennsylvania Rule of Evidence 613.

Second, Perez-Toledo argues that the preliminary hearing testimony 

was inadmissible as substantive evidence. According to Perez-Toledo, the 

Commonwealth failed to meet the requirements of Pennsylvania Rule of 

Evidence 803.1(1) because, while the victim testified at trial, she was never 

subject to cross-examination about the prior inconsistent statements she 

made in her preliminary hearing testimony. Perez-Toledo asserts that 

because the Commonwealth did not examine the witness about the 

preliminary hearing testimony before its admission, the trial court should not 

have admitted the transcript under Rule 803.1(1) and his trial counsel 

should have objected to its admission.

We conclude that this claim lacks merit. First, the preliminary hearing 

transcript was admitted as substantive evidence. Therefore, its admission is 

not affected by the procedural requirements of Rule 613, which governs the 

admissibility of prior inconsistent statements for the sole purpose of 

impeachment. It is well settled that “a prior inconsistent statement may be 

offered not only to impeach a witness, but also as substantive evidence if it 

meets additional requirements of reliability.” Commonwealth v. Carmody, 
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799 A.2d 143, 148 (Pa.Super. 2002). Thus, because the statement was 

admitted as substantive evidence, the jury could consider the statement not 

only as proof of the truth of the matter asserted, but also to test the 

credibility of the witness.

Further, the preliminary hearing testimony was properly admitted as 

substantive evidence. Rule 803.1(1) governs the admissibility of prior 

inconsistent statements as substantive evidence:

Rule 803.1. Exceptions to the Rule Against 

Hearsay—Testimony of Declarant Necessary

The following statements are not excluded by the rule 

against hearsay if the declarant testifies and is subject to 

cross-examination about the prior statement:

. . .

(1) Prior Inconsistent Statement of DeclarantWitness. A prior statement by a declarant-witness 

that is inconsistent with the declarant-witness’s 

testimony and:

(A) was given under oath subject to the penalty of 

perjury at a trial, hearing, or other proceeding, 

or in a deposition;

(B) is a writing signed and adopted by the 

declarant; or

(C) is a verbatim contemporaneous electronic 

recording of an oral statement.

Pa.R.E. 803.1(1).

As admitted by trial counsel, the victim’s testimony at the preliminary 

hearing was under oath and counsel was given the opportunity to crossexamine the victim at that hearing. See N.T. Trial at 38-39 (“The only 
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statement . . . that can be introduced as substantive evidence is the 

preliminary hearing transcript, because at the time, the child was under oath 

and defense counsel was allowed to cross-examine her.”). In addition, 

although trial counsel did not cross-examine the victim at trial, he was given 

the opportunity to do so. Under similar circumstances, we have held that 

the “mandates of Rule 803.1 are satisfied.” Commonwealth v. Stays, 70 

A.3d 1256, 1262 (Pa.Super. 2013). In Stays, an eyewitness who saw a 

shooting gave a transcribed statement to police identifying Stays as the 

shooter. Id. at 1260. The eyewitness also circled Stays on a photo array, 

which he signed and dated. Id. However, when called at the preliminary 

hearing, the eyewitness stated that “he had not seen anybody at the time of 

the shooting, and that he did not sign the photo array[.]” Id. (quotation 

omitted). Despite being present at the preliminary hearing, Stays and his 

counsel “declined to ask any questions on cross-examination.” Id. 

We concluded that the prior inconsistent statements made to police 

were admissible at the preliminary hearing and later as substantive evidence 

at trial5:

____________________________________________

5 Between the preliminary hearing and the trial, the witness was 

murdered. Id. At trial, the Commonwealth sought to introduce the 

witness’s preliminary hearing testimony under Pennsylvania Rule of Evidence 

804(b) and Stays objected that the witness’s prior inconsistent statements –

the transcribed statement and the photo array – introduced at the

preliminary hearing were inadmissible pursuant to Rule 803.1. Id. at 1261.
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In this instance, [the eyewitness] declined to identify Stays 

at the preliminary hearing despite his earlier identification 

of the same man in the photo array, and disavowed the 

statement he had given earlier. N.T., Preliminary Hearing, 

9/23/08, at 5–7, 11–18. He conceded only that his 

signature appeared on the last page of the statement, 

while offering contradictory answers concerning the 

appearance of his initials on the remaining pages. Id. at 

10–11. He denied having signed the photo array. Id. at 

12.

Under those circumstances, Rule 803.1 rendered the 

signed photo array and [the witness’s] written statement 

fully admissible at the preliminary hearing, so long as the 

witness had been available for cross-examination. See

Pa.R.E. Rule 803.1(1). Significantly, it is not imperative 

that the defendant actually cross-examine the witness; if 

the defendant had an adequate opportunity to do so with 

full knowledge of the inconsistent statement, the mandate 

of Rule 803.1 is satisfied. Cf. Commonwealth v. 

Bazemore, 531 Pa. 582, 614 A.2d 684, 686 (1992) 

(recognizing the admissibility at trial of prior inconsistent 

preliminary hearing testimony on the proviso that the 

defendant must have knowledge of the existence of the 

inconsistency and an opportunity to cross-examine the 

witness about it). As the trial court recognized, [the 

defendant] was offered the opportunity at the preliminary 

hearing to cross-examine [the witness] about the original 

statement and the photo array identification, as well as 

[the witness’s] attempted recantation. N.T., Preliminary 

Hearing, 9/23/08, at 15. At the very least, we would 

expect Stays to have explored the witness’[s] motive for 

distancing himself from his earlier statements if only to 

dispel the inference of Stays’ guilt should [the witness’s] 

recantations be attributed to fear of retribution. 

Nevertheless, Stays declined to conduct any crossexamination at all. Id. Consequently, [the witness’s] 

preliminary hearing testimony rendered both his 

identification of Stays on the photo array and his signed 

statement to the Philadelphia Police admissible at the 

preliminary hearing as prior inconsistent statements. See 

id.

Id. at 1262.
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Here, although the circumstances are slightly different, the rationale of 

Stays applies. At the preliminary hearing, the victim testified that PerezToledo had abused her. At trial, however, the victim recanted her 

testimony, stating that she did not remember speaking to others about the 

alleged abuse and claiming that Perez-Toledo was innocent, which ended in 

the following exchange:

[COMMONWEALTH]: And you don’t remember talking to 

Dr. Lawrence and telling him and explaining to him that 

[Perez-Toledo] inserted his penis into your vaginal area?

[VICTIM]: I never said that.

[COMMONWEALTH]: Or into your mouth?

[VICTIM]: I never said that.

[COMMONWEALTH]: Do you remember testifying at the 

preliminary hearing in April of 2011?

[VICTIM]: Yes.

[COMMONWEALTH]: Do you remember saying when you 

testified that these things happened?

[VICTIM]: No.

[COMMONWEALTH]: If I showed you a copy of your 

testimony, would that refresh your memory?

[VICTIM]: I don’t need to see anything.

[COMMONWEALTH]: Would it refresh your memory if you 

saw it?

[VICTIM]: No. I don’t want to see it.

[COMMONWEALTH]: Why don’t you want to see it?

[VICTIM]: Because all of that is a lie.

[COMMONWEALTH]: But do you remember testifying at 

the preliminary hearing?
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[VICTIM]: No.

N.T., 10/17/12, at 46-47. After the Commonwealth finished its examination, 

Perez-Toledo’s counsel declined to cross-examine the witness regarding her 

prior inconsistent statements at the preliminary hearing or her recantation at 

trial. Thus, Perez-Toledo had an opportunity to cross-examine the victim on 

her prior inconsistent statements, rendering the statements admissible as 

substantive evidence pursuant to Rule 803.1(1).6 Because the underlying 

claim lacks arguable merit, we conclude that counsel was not ineffective for 

failing to object to the introduction of the preliminary hearing testimony. 

See Koehler, 36 A.3d at 140.

IV. Failure to Plead Prejudice

Finally, Perez-Toledo argues that the PCRA court erred when it found 

that Perez-Toledo did “not plead in any fashion, much less prove, that but 

for trial counsel’s actions the outcome of this matter would have been 

different.” Perez-Toledo’s Br. at 20 (quoting 1925(a) Op. at 9). According 

____________________________________________

6

Perez-Toledo asserts that the victim was not available for purposes of 

Rule 803.1, citing In re N.C., 74 A.3d 271 (Pa.Super. 2013). N.C., 

however, is readily distinguishable. In N.C., the four-year-old victim was 

called at trial, but would not provide testimony about the incident. Id. at 

275. Rather, the victim only gave non-verbal and “infrequent verbal 

responses,” eventually becoming “nonresponsive [and] curling up into a fetal 

position.” Id. at 276. Because the victim “refused to testify about the 

incident on direct examination and eventually was unable to provide any 

response to prosecutor’s questions,” we determined that the victim was 

unavailable for cross-examination. Id. at 276, 278. Here, in contrast, the 

victim testified at trial, though not favorably to the Commonwealth. The 

victim was clearly available for cross-examination and the rationale of N.C.

does not apply.
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to Perez-Toledo, he properly pled the prejudice prong because he pled in 

each claim that had trial counsel performed effectively, the outcome of the 

trial would have been different. Perez-Toledo accuses the PCRA court of not 

“carefully read[ing]” his PCRA petition, and asserts that because the PCRA 

court is “patently incorrect,” he is entitled to relief. Id. at 20-21.

We conclude that this argument is meritless. Even if the PCRA court 

erred by concluding that Perez-Toledo failed to properly plead prejudice, 

Perez-Toledo’s failure to prove the other prongs defeats his claim.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/2017