# DIAZ v. COMMONWEALTH OF PENNSYLVANIA

> District Court, M.D. Pennsylvania · February 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10412770

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412770

## How later opinions describe it (automated extraction)

- finding that a brief reference by detective to defendant’s silence did not violate the Fifth Amendment where it was not intended to imply a tacit admission of guilt but to recount the sequence of the investigation

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HAMETT DIAZ, No. 4:20-CV-01667

Petitioner, (Chief Judge Brann)

v.

DEREK OBERLANDER,

Respondent.

MEMORANDUM OPINION

FEBRUARY 14, 2023
Petitioner Hamett Diaz, (“Diaz”), an inmate confined in the Forest State
Correctional Institution, Marienville, Pennsylvania, files the instant counseled
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a
conviction and sentence imposed in the Court of Common Pleas of Monroe County
in criminal case CP-45-CR-0000396-2014.
For the reasons set forth below, the petition for writ of habeas corpus, which
is governed by the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”), will be denied.
I. BACKGROUND
The relevant facts and procedural history, extracted from the Pennsylvania
Superior Court’s May 7, 2020 decision, affirming the denial of Diaz’s PCRA
petition, are as follows:
[Appellant] is the stepfather of K.C., a 15 year old female. K.C. has a
17 year old friend, K.O., who is the victim (hereinafter referred to as
“Victim”). On October 19, 2013, at around 12:00 p.m., [Appellant]
drove K.C. and Victim from Blakeslee, Monroe County, Pennsylvania
to New York City, NY, so that K.C. and Victim could get their nails
done. During the drive, [Appellant] furnished K.C. and Victim with
alcohol. [Appellant] also drank alcohol. While in New York when K.C.
was getting her nails done, [Appellant] and Victim went to a liquor store
in order to purchase more alcohol.

After K.C. and Victim were finished with their nails, [Appellant], K.C.,
and Victim headed back to Pennsylvania. Upon returning to
Pennsylvania, they stopped at a Burger King restaurant for Victim to
use the bathroom. Victim was so intoxicated, she required assistance
walking to and using the bathroom. Around 11:00 p.m., [Appellant],
K.C. and Victim arrived back at [Appellant] and K.C.’s home in
Blakeslee. When they arrived at the home, [Appellant] sent K.C. into
the house to see if K.C.’s mother, [Appellant’s] wife, was awake.

After K.C. went into the house, [Appellant] drove off with the Victim
to a secluded service road. At this point, Victim began zoning in and
out. After pulling onto the service road, Victim recalls [Appellant]
getting out of the minivan, opening the trunk door, and laying out the
backseat. [Appellant] then called Victim to move to the back of the
minivan. When Victim moved to the back of the minivan she hit her
head. The next thing Victim recalls she was lying on her back in the
rear of the minivan. Victim then remembers [Appellant] putting his
mouth on her vagina. Victim recalls [Appellant] putting his penis in her
vagina. She testified that she was in and out of consciousness and that
she was so intoxicated she was slurring her words and unable to speak.

[Appellant] and Victim arrived back at [Appellant] and K.C.’s house
and she was unable to walk. Victim stated she “crawled” up the stairs.
When Victim entered the house, she was crying and she immediately
told K.C. that she and [Appellant] had driven down the mountain and
she believed “something may have happened.” K.C. then helped Victim
wash up, get changed, and get into bed.

Victim later woke up around 4:00 a.m. on October 20, 2014, and told
K.C. that she thought [Appellant] had sex with her. K.C. confirmed that
Victim had come back to the house crying. Victim then called her ex-
boyfriend about the incident. Victim’s ex-boyfriend told his mother; the
ex-boyfriend’s mother called Victim’s mother who called the police.
Victim’s mother then drove to [Appellant’s] house and waited with
Victim until the police arrived. The police arrived with an ambulance
and Victim was transported to the hospital.

Commonwealth v. Diaz, 152 A.3d 1040, 1042 (Pa.Super. 2016)
(quoting Trial Court Opinion, 10/2/15, at 1-3).

Appellant was convicted by a jury of rape of a person who is
unconscious, aggravated indecent assault, unlawful contact with a
minor, corruption of minors, and endangering the welfare of children.
The trial court sentenced him to a mandatory minimum sentence on the
rape conviction pursuant to 42 Pa.C.S. § 9714(a)(2) (“Where the person
had at the time of the commission of the current offense previously been
convicted of two or more such crimes of violence arising from separate
criminal transactions, the person shall be sentenced to a minimum
sentence of at least 25 years of total confinement”). On appeal, this
Court vacated the judgment of sentence after concluding that the
mandatory minimum sentence was inapplicable. Appellant was
resentenced on September 8, 2017, to an aggregate term of
incarceration of 140 to 280 months, and he did not file a direct appeal.

On September 15, 2018, Appellant filed the instant, counseled PCRA
petition in which he identified three omissions of trial counsel that he
contended deprived him of a fair trial. First, he faulted counsel for
failing to object to inculpatory hearsay testimony elicited from Victim.
Second, he alleged that counsel should have called four witnesses, some
of whom would have impeached Victim’s testimony regarding her level
of intoxication and others also offering testimony as to the reasons why
Appellant went to New York the next day. Several of the witnesses
would have confirmed that Appellant’s minivan remained in
Appellant’s driveway for at least one week in order to contradict State
Police Trooper Wesnak’s testimony that he did not obtain a search
warrant for DNA testing on the minivan because he could not locate it
until such time as the testing would have been futile. Finally, Appellant
alleged that counsel was ineffective when he failed to object and seek
a curative instruction when the Trooper testified that Appellant opted
not to answer questions on the advice of his attorney.
Following an evidentiary hearing on March 25, 2018, the PCRA court
concluded that no relief was due. Appellant timely appealed, and both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant presents three issues for our review:

I. Whether the trial court erred1 in denying the [PCRA] Petition
where trial counsel was ineffective in failing to object to the
admission of hearsay testimony in which multiple witnesses
testified that [Appellant’s] step-daughter, K.C., confirmed that
[Appellant] raped [Victim] and encouraged [Victim] to call for
help.

II. Whether the trial court erred in denying the [PCRA] Petition
where trial counsel was ineffective in failing to call defense
witnesses who would have directly impeached critical testimony
from the Commonwealth’s witnesses such as the allegations that
[Victim] was too intoxicated to consent to sexual intercourse and
that [Appellant] had tampered with the alleged crime scene and
fled the jurisdiction.

III. Whether the trial court erred in denying the [PCRA] Petition
where trial counsel was ineffective in failing to object to the
investigating officer’s disparagement of [Appellant’s] refusal to
give a statement and instead hire an attorney on the basis that the
testimony violated [Appellant’s] rights to counsel and his rights
against self-incrimination under the Pennsylvania and United
States Constitutions.2

In a Memorandum Opinion filed May 7, 2020, the Superior Court affirmed,
finding no error in the PCRA court’s conclusion that Petitioner was not entitled to
relief on his claims.3 On January 6, 2021, the Pennsylvania Supreme Court denied
Diaz’s petition for allowance of appeal.4

1 This Court notes that while the Pennsylvania Superior Court identifies the issues raised as
trial court error, they address the issues in the same manner as the PCRA court did, solely
as trial counsel ineffectiveness.
2 Commonwealth v. Diaz, 1965 EDA 2019 at 1-4, 237 A.3d 436, 2020 WL 2200741 (Pa.
Super. 2020) (unpublished memorandum).
3 Id.
On August 10, 2020, while Diaz’s state court litigation was pending, he filed
a petition for writ of habeas corpus in the United States District Court for the Eastern

District of Pennsylvania.5 By Order dated September 11, 2020, the Eastern District
transferred Diaz’s action to the Middle District.6 On September 15, 2020, Diaz filed
a motion to stay his federal proceedings while he exhausted his state court remedies.7

By Memorandum and Order dated September 18, 2020, Petitioner’s motion to stay
was granted and Petitioner was directed to notify the Court within thirty (30) days
of the termination of his pending state court review.8
On March 1, 2021, after exhausting state court remedies, a counseled amended

petition was filed on behalf of Diaz, raising for federal review, the following three
issues of ineffective assistance of counsel:
1. Trial counsel failed to object to inadmissible hearsay testimony from
Diaz’s stepdaughter in which she confirmed that Diaz had raped the
complainant, who was her 17-year-old friend. Because this was
essentially a one-witness case in which the complainant alleged that
Diaz assaulted her, the failure to object to this patently inadmissible
testimony provided the jury with corroboration in a case in which there
would have been no corroboration. Trial counsel allowed multiple
witnesses to testify to this hearsay despite the fact that Diaz’s
stepdaughter did not testify at trial.

2. Second, trial counsel was ineffective in failing to call defense
witnesses who would have impeached the testimony of the
investigating officer and the complainant. The complainant claimed at
trial that the alleged assault took place while she was incapacitated from

5 Doc. 1.
6 Doc. 5.
7 Doc. 7.
drinking alcohol, but three of Diaz’s family members saw her shortly
after the alleged assault and saw that she did not exhibit any signs of
intoxication. Trial counsel inexplicably failed to call these witnesses at
trial to impeach her testimony.

3. Third, trial counsel was ineffective in failing to object when the
investigating officer disparaged Diaz’s decision to retain counsel and
decline to give a statement. This testimony should have resulted in a
mistrial, or at a minimum, a cautionary instruction, as the jury was left
with the inference that Diaz must have been guilty because he decided
to exercise his Fifth and Sixth Amendment rights rather than give a
statement to police.9

On March 17, 2021, the above captioned action was reopened and a Show
Cause Order, requiring a response to the petition, was issued.10 On April 5, 2021, a
response was filed;11 on March 14, 2022, Petitioner filed a supplement to his
amended petition.12
II. DISCUSSION
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper
mechanism for a prisoner to challenge the “fact or duration” of his confinement.13
Petitioner’s case is governed by the AEDPA, 28 U.S.C. § 2254, which provides, in
pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws
or treaties of the United States.

9 Doc. 16.
10 Doc. 17.
11 Doc. 18.
12 Doc. 19.
...

(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—

(1) unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding....14

Section 2254 sets limits on the power of a federal court to grant an
application for a writ of habeas corpus on behalf of a state prisoner.15 A federal
court may consider a habeas petition filed by a state prisoner only “on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
United States.”16 This limitation places a high threshold on the courts. Typically,
habeas relief will only be granted to state prisoners in those instances where the
conduct of state proceedings resulted in a “fundamental defect which inherently
results in a complete miscarriage of justice” or was completely inconsistent with
rudimentary demands of fair procedure.17

14 28 U.S.C. § 2254.
15 Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d
Cir. 2014).
16 28 U.S.C. § 2254(a).
Further, a federal habeas court may not consider a petitioner’s claims of
state law violations; review is limited to issues of federal law.18

A. Merits Analysis
Under the AEDPA, federal courts reviewing a state prisoner’s application
for a writ of habeas corpus may not grant relief “with respect to any claim that was

adjudicated on the merits in State court proceedings” unless the claim (1) “resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States” or (2) “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court
proceeding.”19
“[B]ecause the purpose of AEDPA is to ensure that federal habeas relief

functions as a guard against extreme malfunctions in the state criminal justice
systems, and not as a means of error correction,”20 “[t]his is a difficult to meet and
highly deferential standard . . . which demands that state-court decisions be given
the benefit of the doubt.”21 Here, the burden is on Diaz to prove entitlement to the

18 See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.”); Pulley v.
Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a
perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state
prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable.”).
19 28 U.S.C. § 2254(d).
20 Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotations and citations omitted),
writ.22
A decision is “contrary to” federal law if “the state court applies a rule that

contradicts the governing law set forth in [Supreme Court] cases” or “if the state
court confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [Supreme
Court] precedent.”23 “[A] state court decision reflects an ‘unreasonable application

of such law’ only ‘where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [the Supreme] Court’s precedents,’ a
standard the Supreme Court has advised is ‘difficult to meet’ because it was ‘meant

to be.’ [Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct. 770. As the Supreme
Court has cautioned, an ‘unreasonable application of federal law is different from
an incorrect application of federal law,’ Richter, 562 U.S. at 101, 131 S.Ct. 770

(quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495), and whether we ‘conclude[ ]
in [our] independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly’ is irrelevant, as AEDPA sets a
higher bar. Williams, 529 U.S. at 411, 120 S.Ct. 1495.”24 A decision is based on

an “unreasonable determination of the facts” if the state court’s factual findings are
objectively unreasonable in light of the evidence presented to the state court.25

22 Id.
23 Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
24 Mathias v. Superintendent Frackville, SCI, 876 F.3d 462, 476 (3d Cir. 2017).
Finally, Section 2254(e) provides that “[i]n a proceeding instituted by an
application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue shall be presumed to
be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

B. Ineffective Assistance of Counsel
Diaz raises three ineffective assistance of counsel claims. The clearly
established ineffective assistance of counsel standard as determined by the
Supreme Court of the United States is as follows:

Ineffective assistance of counsel claims are “governed by the familiar
two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v. Carroll, 464 F.3d 423,
438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123
S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For AEDPA purposes, the
Strickland test qualifies as “clearly established Federal law, as
determined by the Supreme Court.” Williams, 529 U.S. at 391, 120
S.Ct. 1495. Under Strickland, a habeas petitioner must demonstrate
that: (1) counsel’s representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for
counsel’s error, the result would have been different. 466 U.S. at 687,
104 S.Ct. 2052. For the deficient performance prong, “[t]he proper
measure of attorney performance remains simply reasonableness under
prevailing professional norms.” Id. at 688, 104 S.Ct. 2052. This review
is deferential:

A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance....

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally
unreasonable, ... warrant[s] setting aside the judgment of a
criminal proceeding.” Id. at 691, 104 S.Ct. 2052. “Even if a
defendant shows that particular errors of counsel were
unreasonable, ... the defendant must show that they actually
had an adverse effect on the defense”; in other words, the
habeas petitioner must show that he was prejudiced by
counsel’s deficient performance. Id. at 693, 104 S.Ct. 2052.
To establish prejudice, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694,
104 S.Ct. 2052.

In assessing an ineffective assistance of counsel claim, “the ultimate
focus of inquiry must be on the fundamental fairness of the
proceeding.... In every case the court should be concerned with whether
... the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to
produce just results.” Id. at 696, 104 S.Ct. 2052.26

When the state court has decided the claim on the merits, “[t]he question ‘is
not whether a federal court believes the state court’s determination’ under the
Strickland standard ‘was incorrect but whether that determination was
unreasonable—a substantially higher threshold.’ ”27 “And, because the Strickland

26 Rainey v. Varner, 603 F.3d 189, 197–98 (3d Cir. 2010).
27 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.
standard is a general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.”28

The Superior Court stated that the proper standard governing ineffective
assistance of counsel claims is as follows:
In order to overcome that presumption, “a PCRA petitioner must plead
and prove that: (1) the legal claim underlying the ineffectiveness claim
has arguable merit; (2) counsel’s action or inaction lacked any
reasonable basis designed to effectuate petitioner’s interest; and, (3)
counsel’s action or inaction resulted in prejudice to petitioner.”
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015).

In determining whether counsel had a reasonable basis, the issue is not
“whether there were other more logical courses of action which counsel
could have pursued[,]” but “whether counsel’s decisions had any
reasonable basis.” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa.
2014) (citations omitted). If it is a matter of strategy, we will not find a
lack of reasonable basis unless “an alternative not chosen offered a
potential for success substantially greater than the course actually
pursued.” Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). In
order to demonstrate prejudice, “a petitioner must show that there is a
reasonable probability that, but for counsel’s actions or inactions, the
result of the proceeding would have been different.” Mason, supra at
389. All three prongs of the test must be satisfied in order for a
petitioner to be entitled to relief. Id.29

The United States Court of Appeals for the Third Circuit has specifically held that
the very ineffectiveness assistance of counsel test relied upon by the Superior
Court in this matter is not contrary to the Supreme Court’s Strickland standard.30

28 Id.
29 Commonwealth v. Diaz, 1965 EDA 2019 at 5-6, 237 A.3d 436, 2020 WL 2200741 (Pa.
Super. 2020) (unpublished memorandum).
Therefore, the Court finds that the Superior Court’s decision is not contrary to
Strickland.

The Court next considers whether the state courts’ disposition of Diaz’s
exhausted ineffective assistance of counsel claims involved an unreasonable
application of Strickland or resulted in a decision based on an unreasonable

determination of the facts in light of the evidence presented in the state courts.
1. Trial counsel was ineffective in failing to object to
inadmissible, incriminating hearsay testimony.

Diaz argues that defense counsel was ineffective in failing to object to the
victim’s testimony regarding her conversation with Diaz’s stepdaughter, K.C., who
confirmed that Diaz raped the complainant and encouraged the complainant to call
for help.31 Diaz claims that defense counsel should have objected to the statements
as both hearsay and as violative of his right to confrontation under the
Pennsylvania and United States Constitution.32
In recounting the testimony at issue, the PCRA court addressed Petitioner’s

ineffective assistance claim as follows:
Q: And then at some point, did you wake up or regain consciousness
or something?
A: Yes.
Q: And then what happened then at that point?
A: Well, then I woke up it was 4:30 and then I had told [K.C.] like
I had this crazy dream. And she was like, oh [K.C.], it wasn’t a
dream. And she was – then I said, you know, what do you mean?
She was like everything that you told me, it happened. So then

31 Doc. 16 at 26.
she said that I needed to – so then I started crying and she said I
needed to tell somebody.33

She also repeated parts of a phone call she heard between K.C. and
K.O’s ex-boyfriend, where K.C. told him “my stepfather [the
Defendant] raped [K.O.].” (N.T., Volume I, at 52). Continuing in her
testimony, she recalled K.C. telling her mother “it was true” that
Defendant had raped K.O. (N.T. Volume 1 at 54.) Trial counsel did not
make a hearsay objection during the victim’s testimony.

On cross examination, defense counsel referred to K.O.’s fragmentary
memory of the rape to elicit hearsay implying she only came to believe
it happened on K.C.’s insistence.34

Q: And when you wake up you tell [K.C.] that you thought you had
a dream that you had sex with my client?
A: Yes.
Q: And you said, I’m not sure if I was dreaming or if this is true,
right?
A: Yes.
Q: And she says, it’s true, right?
A: Yes.
(N.T. Volume 1, at 74.)

Defendant claims counsel had no conceivable reason not to object to
this testimony, or to elicit it. (Defendant’s Brief at p. 7.) The parties
do not dispute that the testimony in question constitutes hearsay. To

33 Doc. 16-1 at 131.
34 Defendant claims trial counsel introduced more hearsay through the testimony of Nurse
Showers. (PCRA Petition, 8/15/18, at p. 13.) The Commonwealth called Nurse Showers.
On cross, counsel asked the witness to explain her finding recorded on a report she
produced after examination of K.O. for evidence of sexual assault; the Commonwealth
introduced the report as an exhibit. (N.T., Volume 1, at 131.) He accented parts of the
report where K.O.’s recollections might have seemed “hazy” to the witness. He questioned
Nurse Showers about her conclusions that K.O.’s body had no signs of physical injury.
(N.T., Volume 1, at 142-53.) Trial counsel did not, then, introduce hearsay. Defendant
does not claim counsel should have objected to the exhibit. If Defendant had, it would
have been meritless. Statements recorded in the course of medical examination may be
admitted to prove acts of sexual abuse under the medical-treatment exception to the hearsay
rule. See Commonwealth v. Stanford, 580 A.2d 784, 792 (Pa. Super. 1990). Regardless,
Defendant has not developed this argument at the hearing or in his brief, so we cannot rule
begin, we note that that not objecting to hearsay testimony is not
ineffectiveness per se. See, e.g., Commonwealth v. Thomas, 578 A.2d
422, 423 (Pa. Super. 1990) (analyzing all elements of the
ineffectiveness test applied to a failure-to-object claims, because no
presumption arises directly from that omission).

Trial counsel’s testimony at the PCRA hearing shows he intended to
have the jury hear the testimony, as it supported the defense theory of
the crime. He strategized that the prosecution could not prove
intercourse beyond a reasonable doubt if it could have occurred entirely
as a figment of K.O.’s intoxication. (N.T., PCRA Hearing, at 8-9, 12-
13, 14, 16, 24-25.) Counsel testified that he believed the hearsay
statements would show K.O. waking up certain about her own
memories, suggesting she was capable of imagining the crime based on
K.C.’s suggestion as compensation for her memory loss. (N.T., PCRA
Hearing, at 8-9, 12-13, 14, 16, 24-25.) Allowing the victim to narrate
her realization with K.C. provided the most direct evidence to support
this theory. (N.T., PCRA Hearing, at 24-25, 27-28.) Further, allowing
the Commonwealth to introduce the victim’s statement for this purpose
avoided the defense having to call K.C. herself. Counsel stated he
would not have called K.C. to testify, as her testimony could have
reflected poorly on the defense. (N.T., PCRA Hearing, at 24.)
Counsel’s testimony shows he acted with a strategic basis, which he
designed to advance an alternate theory that supports Defendant’s
innocence.35

The Superior Court adopted the PCRA court’s findings, crediting trial
counsel’s explanation of his strategy as follows:
The PCRA court credited trial counsel’s explanation of the reason why
he did not object. PCRA Court Opinion, 6/11/19, at 11. The court also
concluded that counsel “acted with a strategic basis, which he designed
to advance an alternate theory that supports [Appellant’s] innocence.”
Id. at 10. According to the PCRA court, both Victim’s hearsay
testimony of her conversation with K.C. and her account of K.C.’s
conversation with Victim’s boyfriend served the same strategic
purpose, and thus, did not lack a reasonable basis.

Appellant contends that counsel had no reasonable strategic basis for
failing to object to hearsay statements made by a non-testifying witness
that Appellant raped Victim. Appellant’s brief at 8. He alleges further
that counsel recognized the damaging nature of the statements when he
established on cross-examination that the declarant would not have had
any personal knowledge of whether a rape occurred. Id. Appellant
maintains that, “to the extent that trial counsel actually pursued a theory
that [Victim] had confused a dream for reality, trial counsel already had
what he needed to argue such a theory . . . without admitting inculpatory
hearsay.” Id. at 9. He directs our attention to Victim’s testimony that
she believed the alleged incident was dream. N.T. Trial Vol. 1, 2/11/15,
at 170. He contends that counsel could have argued that Victim
imagined the incident without allowing hearsay evidence of statements
by K.C. incriminating Appellant. Appellant argues in the alternative
that there were wiser strategies, such as arguing that Victim “fabricated
the assault allegations rather than explain to her friend that she had
consented to sexual intercourse with her friend’s married step-father.”36
Appellant’s brief at 10.

Counsel’s assistance is deemed constitutionally effective “if he chose a
particular course that had some reasonable basis designed to effectuate
[the] client’s interest.” Commonwealth v. Sneed, 45 A.3d 1096, 1107
(Pa. 2012). Counsel admittedly chose a hybrid strategy, which required
him to walk a fine line between the scenario where Victim was so
intoxicated that her memory was unreliable, and the situation where,
although she had been drinking, she was not unconscious and, thus,
capable of consenting. In either scenario, there was no rape. With
regard to the first strategy, counsel sought to establish that K.C. made
up the rape and suggested that it occurred to the intoxicated and
confused Victim. The value in the hearsay testimony lay in painting
K.C., whom counsel established was not present when the rape
allegedly occurred, who would have had no personal knowledge of the
facts, and who did not testify at trial, as the fabricator of the rape story.
Furthermore, K.C. propagated the lie when she called Victim’s former

36 In the PCRA court, Appellant argued that the only two realistic defenses once the
Commonwealth introduced DNA testimony were: (1) that Victim was capable of
consenting, in fact consented, and later fabricated the rape allegation; or (2) that the DNA
results were erroneous. See Defendant’s Supplemental Brief, 5/12/19, at 4. The PCRA
Court found that neither strategy was “so much more likely to succeed that it made trial
boyfriend to report it. Admittedly, the strategy was not successful, but
it was not unreasonable.

The existence of other strategies that may have offered a greater
likelihood of success is of no moment unless the petitioner proves that
the alternative not chosen offered a substantially greater potential for
success, which the PCRA court found Appellant did not demonstrate.
Commonwealth v. Williams, 732 A.2d 1167, 1189 (Pa. 1999). We find
no error. Hence, no relief is due on this claim.37

Under Strickland, counsel is presumed to be operating under sound legal
strategy, even if not the most effective strategy.38 A petitioner “must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ”39 To overcome that presumption, “a habeas
petitioner must show either that: (1) the suggested strategy (even if sound) was not
in fact motivating counsel or, (2) that the actions could never be considered part of
a sound strategy.”40 This test tasks the district court with assessing “counsel’s
reasonableness ... on the facts of the particular case, viewed as of the time of
counsel’s conduct.”41
Elaborating on Strickland’s standard, the Third Circuit has defined a “tiered
structure” with respect to the strategic presumptions:
At first, the presumption is that counsel’s conduct might have been part
of a sound strategy. The defendant can rebut this “weak” presumption
by showing either that the conduct was not, in fact, part of a strategy or

37 Commonwealth v. Diaz, 1965 EDA 2019 at 7-9, 237 A.3d 436, 2020 WL 2200741 (Pa.
Super. 2020) (unpublished memorandum).
38 Strickland, 466 U.S. at 690–91; see also Wiggins v. Smith, 539 U.S. 510, 521–22 (2003).
39 Strickland, 466 U.S. at 689 (quotations omitted).
40 Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005).
by showing that the strategy employed was unsound.... In cases in
which the record does not explicitly disclose trial counsel’s actual
strategy or lack thereof (either due to lack of diligence on the part of
the petitioner or due to the unavailability of counsel), the presumption
may only be rebutted through a showing that no sound strategy posited
by the Commonwealth could have supported the conduct ... However,
if the Commonwealth can show that counsel actually pursued an
informed strategy (one decided upon after a thorough investigation of
the relevant law and facts), the “weak” presumption becomes a “strong”
presumption, which is “virtually unchallengeable.”42

“Courts have routinely declared assistance ineffective when ‘the record
reveals that counsel failed to make a crucial objection or to present a strong
defense solely because counsel was unfamiliar with clearly settled legal
principles.’ ”43 “[T]he defendant is most likely to establish incompetency where
counsel’s alleged errors of omission or commission are attributable to a lack of
diligence rather than an exercise of judgment.”44
In their review of this issue, the state courts found that Diaz’s trial counsel
had a tactical reason for not objecting to the hearsay testimony. Diaz’s counsel
testified at the PCRA hearing, that he intended to have the jury hear the testimony,
as it supported the defense theory of the crime, which strategy was that the
prosecution could not prove intercourse beyond a reasonable doubt if it could have
occurred entirely as a figment of K.O.’s intoxication. Counsel further testified that

42 Thomas, 428 F.3d at 499–500 (footnotes and internal citations omitted).
43 Id. at 501 (quoting 3 Wayne LaFave et al., Criminal Procedure § 11.10(c), at 721 (2d ed.
1999) ); see also Cofske v. United States, 290 F.3d 437, 443 (1st Cir. 2002) (“[C]ourts tend
to be somewhat less forgiving where counsel altogether overlooks a possible objection or
opportunity.”) (citing LaFave, supra, § 11.10(c), at 714-15).
he believed that the most direct evidence to support his theory was to allow the
victim to narrate her realization with K.C as he believed that calling K.C. to testify

would have reflected poorly on the defense. Thus, the state courts reasonably
concluded that trial counsel had a rational, strategic basis for not objecting to the
hearsay testimony. As such, Petitioner fails on the first prong of the Strickland

analysis. Habeas relief is not warranted on this claim.
2. Trial counsel erred in failing to present exculpatory defense
witnesses.

Petitioner’s second claim is that trial counsel was ineffective for failing to
call four defense witnesses who were willing to testify.45 Specifically, Petitioner
claims that two witnesses, Angel Ramos and Iraida Geldres would have testified
that they were home when the complainant entered the house after the alleged rape
and that she did not appear to be intoxicated in or in distress.46 A third witness,
Nilda Diaz’s step-son, Andrew Cordova, would have testified to the location of the
van and that Diaz did not move the van for weeks.47 Finally, Petitioner claims that

a fourth witness, Diaz’s cousin, Damaris Otero, would have confirmed that Diaz
was dropped off by his step-son Angel Ramos and that Diaz did not have the van
with him.48 Petitioner claims that counsel was aware of the existence of the

witnesses and that trial counsel had no strategic basis for failing to hire an

45 Doc. 16 at 39.
46 Id.
47 Id.
investigator, speak with potential defense witnesses, or present the testimony of
those witnesses who could have testified that the complainant was not intoxicated

when she arrived home and further that Diaz did not attempt to hide the van from
the police.49
In Pennsylvania, to prevail on a claim of ineffective assistance of counsel for

failure to call a witness, the appellant must show:
(1) that the witness existed; (2) that the witness was available; (3) that
counsel was informed of the existence of the witness or should have known
of the witness’s existence; (4) that the witness was prepared to cooperate and
would have testified on appellant’s behalf; and (5) that the absence of the
testimony prejudiced appellant.50

Although this standard is not identical to the Strickland standard, the Third
Circuit has held that “the Pennsylvania test is not contrary to the test set forth in
Strickland.”51 In this case, the state courts carefully considered Diaz’s claim
regarding the alleged failure of trial counsel to investigate or question witnesses
and found this claim to be without merit. Specifically, the Superior Court provided
the following details and analysis regarding the claim:
Appellant’s second claim of ineffectiveness involves counsel’s alleged
failure to investigate and call four witnesses, three of whom were
present when he and Victim arrived home. Two of the proffered
witnesses would have offered testimony tending to explain that
Appellant went to New York for fear for his safety and established that
the minivan where the alleged sexual assault occurred remained in

49 Id. at 40.
50 Commonwealth. v. Fulton, 830 A.2d 567, 572 (Pa. 2003) (citations omitted).
51 Moore v. DiGuglielmo, 489 Fed.App’x. 618, 626 (3d Cir. 2012) (“The five requirements
set forth by the Pennsylvania Supreme Court would necessarily need to be shown to prevail
Appellant’s driveway for at least a week after the incident. Such
testimony, Appellant contends, would have undercut Trooper
Wesnak’s testimony implying that Appellant fled in the minivan to
avoid apprehension and that the minivan was unavailable for execution
of a search warrant.

All four witnesses testified at the evidentiary hearing. Appellant’s
stepson, Angel Ramos, and Mr. Ramos’s girlfriend, Iraida Geldres,
testified that they were at Appellant’s home that evening when he and
Victim returned. Mr. Ramos stated that when Victim walked in, “she
walked in normally. She wasn’t stumbling or staggering or anything
like that. She just went right upstairs to my sister’s room.” N.T. PCRA
Hearing, 3/25/19, at 32. He also reported that he received a telephone
call early in the morning from Appellant. Appellant told him that “he
was in trouble, that somebody was threatening his life[,]” and “I believe
that somebody had came to the front door with a baseball bat and the
husband . . . had a weapon . . . a firearm.” Id. at 34. In response to that
call, Mr. Ramos went to Appellant’s home, retrieved him, and drove
him to New York. At that time, Mr. Ramos saw the gray minivan
parked in the driveway by the side entrance to the house, and he
testified that the vehicle remained in that location for two weeks. Id. at
35.

Ms. Geldres confirmed that she saw Victim and Appellant briefly when
they entered the kitchen that night. Victim was walking fine and
showed no signs of inebriation. Id. at 43-44. Ms. Geldres stated that she
would have been willing to testify if she had been asked.

Another stepson, Andrew Cordova, testified that he saw Victim come
into the house and go upstairs. He saw nothing unusual in the way she
proceeded. She seemed perfectly fine and there was no indication that
she was intoxicated. Id. at 52-53. He also explained that, at around 2:00
or 3:00 a.m. that night, Victim’s parents banged on the door. Id. at 54.
The mother had a bat in her hand and the father carried a firearm. Id.
The father said he was going to kill Appellant. Id. Mr. Cordova also
testified that the van remained in the driveway for one week, and that
he then moved it elsewhere. Id. at 56. Two weeks after the incident, Mr.
Cordova drove it to New York and left it with his stepfather. No one
contacted Mr. Cordova to determine what he knew about the incident
or whether he was willing to testify, although he was willing to testify.
The fourth proffered witness was Appellant’s cousin, Damaris Otero.
Mr. Otero confirmed that Appellant was dropped off at his home in
New York and remained there for several weeks. While there,
Appellant used Mr. Otero’s truck, and Mr. Otero stated that he never
saw Appellant with a van while he was in New York. The witness stated
that he would have testified if asked.

Trial counsel testified that he did not call Mr. Ramos, Ms. Geldres, and
Mr. Cordova because they would have undermined the defense’s theory
that Victim was so intoxicated that her memory was unreliable. Id. at
54. He only called Appellant’s wife because he wanted the jury to see
that they were still together.

The PCRA court accepted that there were four witnesses willing and
available to provide allegedly exculpatory testimony for Appellant, that
Appellant informed his counsel of these witnesses, and that other trial
witnesses referred to them. Addressing first the question of whether
counsel was ineffective for failing to elicit testimony from these
witnesses impeaching Victim’s account of her intoxicated condition,
the court concluded that counsel’s decisions “were strategic decisions
done with a purpose, as part of a coherent plan for the defense.” PCRA
Court Opinion, 6/11/19, at 14. Moreover, the court concluded that such
testimony would have been cumulative of the testimony offered by
Nilda Diaz, Appellant’s wife, and thus, there was no prejudice. See
Commonwealth v. Spotz, 896 A.2d 1191, 1229 Pa. 2006) (finding no
prejudice for purposes of PCRA where counsel failed to introduce
cumulative testimony of substance abuse).

In addition, the PCRA court found no prejudice as the testimony of
these witnesses “carried little probative value.” PCRA Court Opinion,
6/11/19, at 15. The court pointed to inconsistencies in the testimony of
Mr. Ramos and Ms. Geldres about their marital status, where they were
standing when Victim entered the home that night, and whether Mr.
Ramos was smoking a cigarette at the time. Their testimony also
contradicted that of Appellant’s wife, who told the jury that only her
children were with her that night. In the court’s view, the
inconsistencies in the evidence diminished its value as impeachment,
and its admission would have not changed the outcome of the case. Id.
at 16.
As the PCRA court has the opportunity to assess and weigh the
credibility of witnesses, we generally defer to its credibility
determinations. See Commonwealth v. Spotz, supra at 1227 (citing
Commonwealth v. Spotz, 870 A.2d 822, 836 (Pa. 2005)) (“Appellate
courts do not act as fact finders, since to do so would require an
assessment of the credibility of the testimony and that is clearly not our
function.”). We find support for the PCRA court’s conclusion that the
proffered testimony tended to undercut counsel’s strategy, was
cumulative of the testimony of Appellant’s wife, and contained
inconsistencies that rendered it weak impeachment evidence. In light of
the foregoing, Appellant failed to demonstrate that there was a
reasonable probability that, but for counsel’s failure to elicit the
foregoing testimony from these witnesses, the outcome of the trial
would have been any different. Commonwealth v. Pierce, 786 A.2d
203, 213 (Pa. 2001) (defining prejudice in the PCRA context as a
demonstration “that there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would have been
different.”).

Appellant also contends that the proffered testimony of Mr. Ramos and
Mr. Cordova regarding the threats made against Appellant were critical
to rebut Trooper Wesnak’s implication that Appellant fled to avoid
police questioning. In addition, their testimony that the minivan
remained in the driveway tended to refute the Trooper’s testimony that
he could not find and impound the minivan and obtain a search warrant
to examine it for DNA and other evidence. Appellant maintains that,
without the witnesses’ testimony, the jury was left to infer that
Appellant fled out of consciousness of guilt, and that he hid the minivan
to avoid its inspection and perhaps destroy evidence.

The PCRA court concluded that the proffered testimony did “not rebut
Trooper Wesnak’s testimony in any material way, and so would not
have had a consequence on the trial.” PCRA Court Opinion, 6/11/19, at
18. The court pointed to cross-examination of the Trooper that he did
“not examine the van because he did not know where it was and could
not contact [Appellant] about locating it.” Id. (referencing N.T. Vol. 1,
2/11/15, at 187). The PCRA court found that none of the witnesses
would have dispelled any suggestion that Appellant hid and destroyed
evidence. The court characterized the Trooper’s testimony as
establishing only that, by the time he could locate the van, any
evidentiary value would have been compromised. In the court’s view,
the proffered testimony regarding the whereabouts of Appellant and the
minivan “would not have been material or helpful to the defense, and
so [Appellant’s] claim for ineffective assistance must fail.” Id. at 19.

Preliminarily, we note that much of what Appellant allegedly told Mr.
Ramos during the late night telephone call, specifically that he had been
threatened by Victim’s parents, was arguably inadmissible hearsay. Mr.
Cordova’s account of Victim’s parents banging on the door and
threatening Appellant was largely cumulative of the testimony of
Victim’s mother. She testified that she had a baseball bat in her hand
when she, accompanied by her former husband, entered Appellant’s
home to retrieve Victim on the night of the incident. Furthermore,
neither Mr. Ramos nor Mr. Cordova could have testified from his own
personal knowledge that Appellant went to New York for fear of
retaliation from Victim’s family, rather than to avoid police
questioning.

Mr. Ramos and Mr. Cordova proffered inconsistent testimony
regarding the length of time the minivan remained in Appellant’s
driveway. Assuming that the minivan was at Appellant’s home for
some time after the incident, perhaps Trooper Wesnak could have
obtained a warrant to examine and test it for DNA evidence. However,
such testimony did not exclude the possibility that the minivan would
have been cleaned before a warrant could have been obtained. In short,
while there may have been some minimal impeachment value from the
testimony of these witnesses regarding the whereabouts of the minivan
and its accessibility for testing, it was unlikely that the absence of this
evidence changed the outcome of the proceeding in light of DNA
evidence obtained from Victim. Hence, this claim does not merit
relief.52

Under federal law, a failure to investigate potentially exculpatory witnesses
may form the basis of ineffective assistance of counsel.53 To successfully establish
this claim, a petitioner “must make a comprehensive showing as to what the

52 Commonwealth v. Diaz, 1965 EDA 2019 at 9-15, 237 A.3d 436, 2020 WL 2200741 (Pa.
Super. 2020) (unpublished memorandum).
53 See Strickland, 466 U.S. at 690-91; see also Brown v. United States, No, 13-2552, 2016
investigation would have produced. The focus of the inquiry must be on what
information would have been obtained ... and whether such information, assuming

admissibility in court, would have produced a different result.”54 The petitioner
must also demonstrate he suffered prejudice.55
Here, in finding counsel’s performance was not deficient, the state courts did

not violate clearly established law, and were not unreasonable in their application
of Strickland. As the Superior Court stated, the testimony of these witnesses
would have carried little probative value and would have been cumulative of the
testimony offered by Diaz’s wife, Nilda Diaz. Specifically, the court pointed to

inconsistencies in the testimony of Mr. Ramos and Ms. Geldres about their marital
status, where they were standing when the victim entered the home that night, and
whether Mr. Ramos was smoking a cigarette at the time. Their testimony also

contradicted that of Nilda Diaz, who told the jury that only her children were with
her that night. In the court’s view, the inconsistencies in the evidence diminished
its value as impeachment, and its admission would have not changed the outcome
of the case. Additionally, the court found Mr. Cordova’s testimony cumulative of

the testimony of Victim’s mother and that neither Mr. Ramos nor Mr. Cordova
could have testified from his own personal knowledge that Diaz went to New York
for fear of retaliation from Victim’s family, rather than to avoid police questioning.

54 See Brown, 2016 WL 1732377, at *5 (quoting United States v. Askew, 88 F.3d 1065, 1073
(D.C. Cir. 1996) (internal quotation marks omitted)).
Finally, while the court found that there may have been some minimal
impeachment value from the testimony of these witnesses regarding the

whereabouts of the minivan and its accessibility for testing, it was unlikely that the
absence of this evidence changed the outcome of the proceeding particularly in
light of DNA evidence obtained from victim.

The Court is mindful that the Supreme Court has observed that a “doubly
deferential judicial review ... applies to a Strickland claim evaluated under the
§ 2254(d)(1) standard.”56 Given this deferential standard, the Court cannot
conclude that the state courts’ decisions relating to these ineffective assistance of

counsel claims were an unreasonable application of Strickland or based on an
unreasonable determination of the facts.57 To the contrary, both the PCRA court’s
and Superior Court’s analyses of these ineffective assistance of counsel claims are

thorough and well-supported by both the law and the facts of the Petitioner’s case.
Diaz has also failed to show potential information from these witnesses would
have produced a different result at his trial. He has thus failed to establish
prejudice.58 Accordingly, Petitioner is not entitled to relief on this claim.

56 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540
U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is “doubly deferential
when it is conducted through the lens of federal habeas”).
57 See, e.g., Eaddy v. Sauers, No. 10-7538, 2011 WL 7409076, at *8 (E.D. Pa. Aug. 2, 2011)
(“counsel’s decision to not call William Jones as a witness was reasonable since his
proposed testimony ... would not have helped Petitioner”), report and recommendation
adopted, 2012 WL 569369 (E.D. Pa. Feb. 22, 2012).
58 See Blasi v. Atty gen. of Com. Of Pa, 120 F. Supp. 2d 451, 474 (M.D. Pa. 2000) (“the
defense cannot have been prejudiced unless the potential witness had favorable evidence
3. Trial counsel erred in failing to object to Trooper Wesnak’s
testimony.

Petitioner’s final claim is that trial counsel was ineffective for failing to
object and seek a curative instruction to Trooper Wesnak’s commentary on
Petitioner’s refusal to give a statement and his decision to hire an attorney.59
Specifically, Petitioner claims that Trooper Wesnak testified on direct examination
that he told Nilda Diaz that he was looking for Diaz and that he was unable to
make contact with him.60 Trooper Wesnak was then asked, “Did you let his wife

know that you were looking for him,” to which he responded, “Yes.” Wesnak
testified that he drove by Diaz’s house several times as part of the effort to locate
Diaz, suggesting that Diaz was evading Trooper Wesnak’s attempts to question

him.61
On cross-examination, defense counsel attempted to question the trooper
regarding whether he had obtained a search warrant for Diaz’s van. Instead of
simply answering the question regarding the van, Trooper Wesnak volunteered that

“unfortunately he [Diaz] fled the area prior to my being able to question him on
that date, and I was never able to find it.”62 When defense counsel asked, “Did you
subsequently apply for a search warrant for the van?”, Trooper Wesnak responded,

“By the time Mr. Diaz turned himself in, on the advice of his attorney, he didn’t

59 Doc. 16 at 49.
60 Id.
61 Id.
want to answer any more questions.63 And by that time it was very obvious that he
could have cleaned up the van and no other evidence would have been able to be

obtained from the van.”64 Relying on Commonwealth v. Molina,65 Petitioner
argues that defense counsel should have objected because both Pennsylvania and
federal appellate courts have long held that the prosecution may not use a

defendant’s decision to remain silent or decision to retain counsel as evidence of
guilt.66
“Miranda67 warnings carry the Government’s ‘implicit assurance’ that an
arrestee’s invocation of the Fifth Amendment right to remain silent will not later be

used against him.”68 In Doyle v. Ohio, 426 U.S. 610, 617–18, (1976), the United
States Supreme Court held that “every post-arrest silence is insolubly ambiguous”
because it “may be nothing more than the arrestee’s exercise of [her] Miranda

right.” Doyle errors of prosecutorial comment on a defendant’s post-arrest silence
can be harmless if the Government “prove[s] beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.”69 This analysis
requires an examination of “the totality of the circumstances.”70 The question

63 Id.
64 Id.
65 104 A.3d 430 (Pa. 2014).
66 Id.
67 Miranda v. Arizona, 384 U.S. 436 (1966).
68 Gov’t of the V.I. v. Martinez, 620 F.3d 321, 335 (3d Cir. 2010) (quoting Gov’t of the V.I.
v. Davis, 561 F.3d 159, 163–64 (3d Cir. 2009)).
69 Davis, 561 F.3d at 165 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
becomes whether the “constitutional trial error was harmless beyond a reasonable
doubt.”71

Furthermore, not every reference to a defendant’s silence results in a Doyle
violation. There is no due process violation when a prosecutor comments on a
defendant’s pre-arrest silence or failure to come forward because there has been no

“implicit promise that his choice of the option of silence would not be used against
him.”72 In Fletcher v. Weir, 455 U.S. 603, 606 (1982), the United States Supreme
Court held where there has been no governmental action to induce the defendant to
remain silent, the Miranda-based rationale does not apply. A prosecutor may

impeach a defendant’s testimony using pre-arrest silence,73 post-arrest, pre-
Miranda warning silence,74 and any voluntary post-Miranda warning statements.75
In denying the claim on its merits, the Superior Court began its analysis by

reiterating the Fifth Amendment’s protection against self-incrimination:
Preliminarily, we note that while Appellant characterizes the Trooper’s
testimony as a reference to his post-arrest silence, it is unclear from
the certified record whether Appellant was under arrest or had received
his Miranda warnings when he invoked his Fifth Amendment right
against self-incrimination. However, the timing of Appellant’s
assertion of his right to remain silent does not impact our legal
analysis.76 In Molina, supra at 450-51, a pre-arrest silence case, our

71 Davis, 61 F.3d at 165.
72 Portuondo v. Agard, 52 9 U.S. 61, 75 (2000) (emphasis in original).
73 Jenkins v. Anderson, 447 U.S. 231, 240 (1908)
74 Fletcher, 455 U.S. at 605–606.
75 See Anderson v. Charles, 447 U.S. 404, 408–409 (1980).
76 Appellant’s argument did not turn on whether the Trooper’s reference was to his pre-arrest
or post-arrest silence. He cited Commonwealth v. Molina, 104 A.3d 430, 450-51 (Pa.
2014), for the proposition that the timing of the silence in relation to an arrest was not
Supreme Court held that “the timing of the silence in relation to the
timing of an arrest is not relevant to the right against self-
incrimination.” The relevant inquiry was whether the mention of the
defendant’s silence was used by the prosecution as substantive
evidence of guilt. The Court held that such use was prohibited unless it
fell within an exception such as impeachment of a testifying defendant
or fair response to an argument of the defense.

In Molina, the prosecutor argued that the defendant’s silence was “most
telling,” asked the jury “why” the defendant refused to cooperate with
the detective, and directed the jury to “[f]actor that in when you're
making an important decision in this case as well.” Id. at 452-53. Our
High Court held that the defendant’s right against self-incrimination
was violated as the prosecutor used the defendant’s silence to imply his
guilt, and concluded that the error was not harmless.

* * *
As this Court held in Commonwealth v. Guess, 53 A.3d 895, 903
(Pa.Super. 2012), the rule precluding reference to a defendant’s silence
“‘does not impose a prima facie bar against any mention of a
defendant's silence’ but rather ‘guards against the exploitation of a
defendant’s right to remain silent by the prosecution.’” Id. citing
Commonwealth v. Adams, 39 A.3d 310, 318 (Pa.Super. 2012) (quoting
Molina, supra at 63) (emphasis in original). Moreover, in Adams, we
relied upon Molina, in concluding that, “the mere revelation of a
defendant’s pre-arrest silence does not establish innate prejudice where
it was not used in any fashion that was likely to burden defendant’s
Fifth Amendment right or to create [an] inference of admission of
guilt.” Adams, supra at 318 (quoting Molina, supra at 56).77

The Court finds that the Superior Court did not apply a rule of law that
contradicts established Supreme Court precedent, and its decision was not contrary
to clearly established Supreme Court precedent. Accordingly, the issue that

77 Commonwealth v. Diaz, 1965 EDA 2019 at 9-15, 237 A.3d 436, 2020 WL 2200741 (Pa.
remains is whether the adjudication by the Superior Court survives review under
the “unreasonable application” clause of § 2254(d)(1).

At Petitioner’s evidentiary hearing, trial counsel maintained that he did not
object to Trooper Wesnak’s testimony because the jury had already heard the
statement, and based on his experience, an objection or curative instruction would
only have highlighted the testimony.78 The PCRA court viewed Trooper Wesnak’s

reference as fair response to the defense’s criticism of the Trooper’s thoroughness
in failing to apply for a search warrant for the Diaz’s minivan.79 The court also
characterized the Trooper’s statement as a “fair recounting of the investigation

concerning the van” and an explanation why he believed that “enough time had
passed to make . . . a search . . . futile.”80 In the court’s view, the answer did not
imply that Diaz’s silence was an admission of guilt, but merely explained the limits
placed on the police investigation.81 Thus, the PCRA court concluded, there was

“no arguable merit to the claim that trial counsel should have objected[,]” or in the
alternative, trial counsel had a reasonable basis for not objecting.82
The Superior Court, in finding no error in the PCRA court’s conclusion that

Diaz is not entitled to relief on this claim, rendered the following opinion:
The reference herein was brief and elicited upon questioning by the
defense. It was not exploited by the Commonwealth on cross-

78 Doc. 16-1 at 170, N.T. PCRA Hearing, 3/25/19, at 23.
79 Doc. 16-1 at 145.
80 Id.
81 Id.
examination or during closing argument. In response to defense
counsel’s question why he did not obtain a search warrant to examine
the minivan for evidence of the alleged sexual assault, Trooper Wesnak
testified that he did not seek a search warrant because he did not know
where the van was and he could not locate Appellant to ask him. He
added that, by the time Appellant turned himself in, he would not
answer questions based on the advice of counsel.

* * *

We find that such evidence of Appellant’s silence was fair response to
the defense’s argument that the Trooper had not sought a search warrant
for the vehicle and an explanation of the investigative timeline.
Consequently, an objection would not have altered the outcome of this
case. See Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005)
(reference to a defendant’s refusal to speak to trooper constituted fair
response to defense counsel’s questioning of the adequacy of the
trooper’s investigation). Herein, the brief reference to Appellant’s
silence served another purpose other than suggesting guilt. See Adams,
supra (finding that a brief reference by detective to defendant’s silence
did not violate the Fifth Amendment where it was not intended to imply
a tacit admission of guilt but to recount the sequence of the
investigation).

We find misplaced Appellant’s reliance upon Costa, supra. Therein, we
determined that trial counsel was ineffective for failing to object when
a police detective testified that the defendant said nothing to him when
charges were filed against him for the molestation of a young boy. The
court concluded that there was no proper purpose for the testimony
other than to highlight the defendant’s silence, which was not the case
herein. Hence, we find no error in the PCRA court’s conclusion that
Appellant is not entitled to relief on this claim.83

Viewing the Superior Court’s disposition of this claim through the
deferential lens of the AEDPA, we conclude that Diaz has failed to carry his
burden to persuade this Court that the Superior Court’s adjudication was

83 Commonwealth v. Diaz, 1965 EDA 2019 at 9-15, 237 A.3d 436, 2020 WL 2200741 (Pa.
unreasonable. The record supports the Superior Court’s conclusion that the
reference to Diaz’s silence, elicited in questioning by defense counsel, was brief in

context and did not occur in a context likely to suggest to the jury that Diaz’s
silence was the equivalent of a tacit admission of guilt. For these reasons, the
Court finds that Diaz is not entitled to habeas relief on his third and final ground.

III. CERTIFICATE OF APPEALABILITY
“Under the Antiterrorism and Effective Death Penalty Act of 1996
(‘AEDPA’), a ‘circuit justice or judge’ may issue a COA [certificate of
appealability] only if the petitioner ‘has made a substantial showing of the denial

of a constitutional right.’ ”84 “Where a district court has rejected the constitutional
claims on the merits, ... the petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or
wrong.”85

For the reasons set forth herein, Petitioner has not made a substantial
showing of the denial of a constitutional right or that jurists of reason would find it
debatable that Court’s assessment of the claims debatable or wrong. Accordingly,

a certificate of appealability will not issue.

84 Tomlin v. Britton, 448 Fed.Appx. 224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)).
IV. CONCLUSION
For the reasons set forth above, the Court will deny the petition for writ of

habeas corpus. An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412770. Public record. Not legal advice.