Com. v. Hayward, A.

J-S21023-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

AYEOLA HAYWARD :

:

Appellant : No. 1702 EDA 2023

Appeal from the PCRA Order Entered June 16, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0002394-2018

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 5, 2024

Appellant Ayeola Hayward appeals from the order dismissing her timely

first Post Conviction Relief Act1 (PCRA) petition. On appeal, Appellant argues

that her trial counsel was ineffective. We affirm.

A prior panel of this Court summarized the relevant facts and procedural

history of this matter as follows:

At trial, the complainant testified he was eleven years old. He

further testified that [Appellant] lived in the complainant’s home

for a time and then moved to the complainant’s grandmother’s

home where they would see each other when the complainant

spent days there during the summer.

He stated he was six or seven years old the first time [Appellant]

victimized him. He was downstairs at his grandmother’s house

and [Appellant] called for him to come upstairs and he saw her in

the bathroom, where she showed him her chest and asked him to

comment on her nakedness. This behavior repeated many times,

making the complainant uncomfortable. He recalled a specific

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1 42 Pa.C.S. §§ 9541-9546.

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incident in the bathroom where [Appellant] made him put his

penis in her mouth.

The complainant testified to other incidents as well. Some time

after the incidents in the bathroom, [Appellant] called the

complainant from downstairs to come upstairs into his aunt’s

bedroom. When the complainant entered the room, [Appellant]

was laying down on the bed and pulled her pants down and told

him to have sexual intercourse with her. This same situation

happened multiple times when the complainant was between the

ages of six and seven. Each time [Appellant] asked him to choose

whether to insert his penis into her anus or vagina. Eventually,

the complainant stopped going to his grandmother’s house as

frequently[,] and the abuse stopped.

One day, years later, the complainant was watching the news with

his mother and heard a story of sexual abuse. His mother asked

him if he was ever abused and he became emotional and told her

about [Appellant’s] attacks. He later attempted to tell people

about the abuse at his grandmother’s house but [Appellant] heard

and stopped him, calling the accusations a lie and pushing him to

the ground. Despite the complainant’s disclosure, his mother

chose not to report the abuse to the police. Later, the complainant

was being evaluated by a doctor for his yearly physical when the

doctor noticed he had an emotional response to the evaluation

and asked the complainant if anything was wrong, to which the

complainant responded by again disclosing the abuse, which the

doctor reported.

Commonwealth v. Hayward, 1048 EDA 2020, 2022 WL 334389, at *1 (Pa.

Super. filed Feb. 4, 2022) (unpublished mem.) (citations omitted).

Following a jury trial, Appellant was found guilty of unlawful contact with

a minor, indecent assault of a child less than thirteen, rape of a child, and

involuntary deviate sexual intercourse (IDSI) with a child.2 See N.T. Trial,

11/8/19, at 4-6. On March 6, 2020, the trial court sentenced Appellant to an

aggregate term of fifteen to thirty years of incarceration and ordered Appellant

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2 18 Pa.C.S. §§ 6318(a)(1), 3126(a)(7), 3121(c), and 3123(b), respectively.

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to register with the State Police in compliance with Tier III sex offender

registration and reporting requirements. See Sentencing Order, 3/6/20.3 A

prior panel affirmed Appellant’s judgment of sentence on direct appeal.4 See

Hayward, 2022 WL 334389, at *4. Appellant did not file a petition for an

allowance of appeal with our Supreme Court.

Appellant filed a timely pro se PCRA petition on May 26, 2022. The PCRA

court appointed PCRA counsel, who filed an amended PCRA petition on

Appellant’s behalf. After issuing a Pa.R.Crim.P. 907 notice of intent to dismiss

Appellant’s PCRA petition without a hearing, the trial court ultimately

dismissed Appellant’s petition on June 16, 2023. This timely appeal followed.

Both the PCRA court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following issues:

1. Whether [trial] counsel was ineffective for failing to file a

weight of the evidence motion.

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3 On this record it appears that the trial court did not order an assessment

from the Sex Offenders Assessment Board (SOAB) to determine whether

Appellant met the legal criteria to be designated a sexually violent predator

(SVP) in this case.

4 Further, although this Court affirmed Appellant’s convictions, the panel

amended Appellant’s sentences for unlawful contact with a minor and indecent

assault of a child less than thirteen, as they exceeded the statutory maximum.

See Hayward, 2022 WL 334389, at *3-4. The panel corrected Appellant’s

sentences and noted that because Appellant’s sentences were run

concurrently to the legal sentence of fifteen to thirty years of incarceration for

rape of a child, the correction did not alter the trial court’s sentencing scheme,

and Appellant’s aggregate sentence remained fifteen to thirty years of

incarceration. See id. at *4.

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2. Whether [trial] counsel was ineffective for failing to call

witnesses.

Appellant’s Brief at 7 (formatting altered).

In reviewing the denial of a PCRA petition, our standard of review

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. The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we

apply a de novo standard of review to the PCRA court’s legal

conclusions.

Furthermore, to establish a claim of ineffective assistance of

counsel, a defendant must show, by a preponderance of the

evidence, ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or

innocence could have taken place. The burden is on the defendant

to prove all three of the following prongs: (1) the underlying claim

is of arguable merit; (2) that counsel had no reasonable strategic

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

and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different.

* * *

Boilerplate allegations and bald assertions of no reasonable basis

and/or ensuing prejudice cannot satisfy a petitioner’s burden to

prove that counsel was ineffective. Moreover, a failure to satisfy

any prong of the ineffectiveness test requires rejection of the

claim of ineffectiveness.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)

(citations omitted and formatting altered); see also Commonwealth v.

Fears, 86 A.3d 795, 804 (Pa. 2014) (reiterating that where a petitioner “fails

to meaningfully discuss each of the three ineffectiveness prongs, the petitioner

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is not entitled to relief, and we are constrained to find such claims waived for

lack of development” (citations and quotation marks omitted)).

Counsel will not be deemed ineffective for failing to file post-sentence

motions where the defendant did not request that counsel file a post-sentence

motion. See, e.g., Commonwealth v. Cook, 547 A.2d 406, 408 (Pa. Super.

1988) (explaining that “[i]n the absence of a request to file post-trial motions,

counsel will not be deemed ineffective for failing to file the same”). Moreover,

“[c]ounsel cannot be found ineffective for failing to pursue a baseless or

meritless claim.” Commonwealth v. Davis, 262 A.3d 589, 596 (Pa. Super.

2021) (citation omitted).

Further, we note that

[t]here is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that

no genuine issues of material fact exist, then a hearing is not

necessary. To obtain reversal of a PCRA court’s decision to

dismiss a petition without a hearing, an appellant must show that

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

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

abused its discretion in denying a hearing.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations

and quotation marks omitted). Finally, this Court has explained:

When briefing the various issues that have been preserved, it is

an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with

citations to legal authorities. Pa.R.A.P. 2119(a), (b), (c).

Citations to authorities must articulate the principles for which

they are cited. Pa.R.A.P. 2119(b).

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This Court will not act as counsel and will not develop arguments

on behalf of an appellant. Moreover, when defects in a brief

impede our ability to conduct meaningful appellate review, we

may dismiss the appeal entirely or find certain issues to be

waived. Pa.R.A.P. 2101.

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (some

citations omitted).

Failure to Challenge Weight of the Evidence

Appellant first argues that the evidence at trial was conflicting and

unreliable, and that trial counsel was ineffective for failing to file a post-

sentence motion preserving a challenge to the weight of the evidence. See

Appellant’s Brief at 16-18.

To satisfy the arguable merit prong of a claim that counsel was

ineffective for failing to file a post-sentence motion challenging the weight of

the evidence, the petitioner “must demonstrate that the verdict was against

the weight of the evidence such that counsel may be deemed ineffective in

failing to file the post-sentence motion.” Commonwealth v. Smith, 181

A.3d 1168, 1186 (Pa. Super. 2018) (citation omitted). If there is no merit to

the underlying weight-of-the-evidence claim, a PCRA petitioner is not entitled

to relief. Id. at 1187. Further, a petitioner establishes prejudice when she

demonstrates that there is a reasonable probability that but for counsel’s act

or omission, the outcome of the proceeding would have been different. See

id. at 1182.

Our Supreme Court has explained:

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A motion for a new trial based on a claim that the verdict is against

the weight of the evidence is addressed to the discretion of the

trial court. A new trial should not be granted because of a mere

conflict in the testimony or because the judge on the same facts

would have arrived at a different conclusion. When a trial court

considers a motion for a new trial based upon a weight of the

evidence claim, the trial court may award relief only when the

jury’s verdict is so contrary to the evidence as to shock one’s

sense of justice and the award of a new trial is imperative so that

right may be given another opportunity to prevail....

At trial, the jury [is] the ultimate fact-finder and the sole arbiter

of the credibility of each of the witnesses. Issues of witness

credibility include questions of inconsistent testimony and

improper motive. A jury is entitled to resolve any inconsistencies

in the Commonwealth’s evidence in the manner that it sees fit.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and

quotation marks omitted).

Here, Appellant failed to discuss the reasonable basis and prejudice

prongs of the test for ineffective assistance of counsel in her brief.5 See

Appellant’s Brief at 16-18; see also Sandusky, 203 A.3d at 1043 (stating

the three prongs of the test for ineffective assistance of counsel). Therefore,

because Appellant did not adequately develop this claim, we conclude that it

is waived. See Fears, 86 A.3d at 804; see also Hardy, 918 A.2d at 771.

Further, Appellant did not indicate in her PCRA petition that she requested

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5 Appellant notes that in this Court’s disposition of her direct appeal, the panel

noted that Appellant’s challenges to the consistency and credibility of the

testimony were not proper challenges to the sufficiency of the evidence and

would be better suited to a challenge to the weight of the evidence. See

Appellant’s Brief at 18; Hayward, 2022 WL 334389 at *3. However, although

the panel noted that Appellant failed to raise a weight claim on direct appeal,

the panel offered no comment on the merits of such a claim or whether the

claim would have been successful.

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that trial counsel file post-sentence motions and that trial counsel failed to do

so. Accordingly, even if Appellant had not waived this claim, she would not

be entitled to relief. See Cook, 547 A.2d at 408.

Failure to Call Witnesses

Appellant also contends that trial counsel was ineffective for failing to

call four witnesses who would have provided testimony that was favorable to

Appellant’s defense. See Appellant’s Brief at 18-19. Specifically, Appellant

identifies Adam Cepero, Hermino Castro, Ayeola Figueroa, and Helen

Figueroa. See id. at 19-21.

The Commonwealth responds that none of Appellant’s proposed

witnesses’ testimony would have resulted in a different outcome at trial.

Commonwealth’s Brief at 13. Accordingly, the Commonwealth argues that

Appellant’s claim does not warrant relief. See id. at 14-18.

In order to satisfy the prejudice prong of the test for ineffective

assistance of counsel6 for failing to call a potential witness at trial, our

Supreme Court has instructed that the PCRA petitioner must establish that

(1) the witness existed; (2) the witness was available to testify

for the defense; (3) counsel knew, or should have known, of the

existence of the witness; (4) the witness was willing to testify for

the defense; and (5) the absence of the testimony of the witness

was so prejudicial as to have denied the defendant a fair trial.

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6 See Sandusky, 203 A.3d at 1043 (enumerating the three-pronged test for

ineffective assistance of counsel).

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Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014) (citations

omitted). “Prejudice in this respect requires the petitioner to show how the

uncalled witnesses’ testimony would have been beneficial under the

circumstances of the case. Therefore, the petitioner’s burden is to show that

testimony provided by the uncalled witnesses would have been helpful to the

defense.” Commonwealth v. Williams, 141 A.3d 440, 460 (Pa. 2016)

(citation and quotation marks omitted).

However, to be eligible for relief under the PCRA, “the petitioner must

plead and prove by a preponderance of the evidence . . . [t]hat the allegation

of error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3).

“[A]n issue is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

In Commonwealth v. Brown, 196 A.3d 130 (Pa. 2018), our Supreme

Court explained that

an on-the-record colloquy is a useful procedural tool whenever the

waiver of any significant right is at issue, constitutional or

otherwise, e.g., waiver of a trial, waiver of the right to counsel,

waiver of the right to call witnesses, waiver of the right to

cross-examine witnesses, waiver of rules-based speedy trial time

limits, etc.

Brown, 196 A.3d at 174 (quoting Commonwealth v. Mallory, 941 A.2d

686, 697 (Pa. 2008) (emphasis added)).

Similarly, in Commonwealth v. Paddy, 800 A.2d 294 (Pa.

2002), we recognized that “a defendant who makes a knowing,

voluntary, and intelligent decision concerning trial strategy will not

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later be heard to complain that trial counsel was ineffective on the

basis of that decision. Id. at 316. To do otherwise, the Court

held, “would allow a defendant to build into his case a ready-made

ineffectiveness claim to be raised in the event of an adverse

verdict.” Id. at 316. In Paddy, the defendant complained of trial

counsel’s ineffectiveness for failing to call alibi witnesses, in

response to which we held that “this ineffectiveness claim fails for

the fundamental reason that [the appellant] agreed at trial to

counsel’s decision not to call the witnesses in question.” Id. at

315[.]

As the record reflects, Brown participated in a colloquy at which

he was advised of all of the witnesses his trial counsel intended to

call in his defense, and he expressly acknowledged that after

consulting with trial counsel, there were no other witnesses he

wanted to testify on his behalf. As Brown voluntarily agreed that

he did not want to call any other witnesses, he cannot now

complain about trial counsel’s failure to call [a witness] to testify.

Brown, 196 A.3d at 174 (some formatting altered). See also

Commonwealth v. Braswell, 2023 WL 4882449, at *7 (Pa. Super. 2023)

(concluding that the appellant waived his claim that trial counsel was

ineffective for failing to investigate and call additional witnesses where the

record revealed that the appellant participated in a colloquy during trial,

confirmed that there were no other witnesses he wanted counsel to call, and

stated that he was satisfied with the defense presented).

Here, the PCRA court addressed Appellant’s claim as follows:

Upon the conclusion of the Commonwealth’s evidence, the [c]ourt

conducted two (2) lengthy colloquies with [Appellant] concerning

her right to testify on her own behalf; whether there were any

witnesses that she wanted trial counsel to produce in her defense;

and whether she was satisfied with trial counsel. Trial counsel

represented to the [c]ourt, that there would be two (2) witnesses

he intended to call in Appellant’s case: Ayeola Figueroa

([Appellant’s] daughter) and Kiann[i] Cepero. However, Appellant

also stated that she wanted trial counsel to call Adam Cepero.

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Upon further inquiry by the [c]ourt, trial counsel stated that a

subpoena to attend the trial was properly served on Mr. Cepero,

however, he did not appear. When asked if there were any other

witnesses, she wanted counsel to produce[], Appellant said there

were not. [Appellant] further stated that she was satisfied with

[trial] counsel’s representation. The trial was adjourned on that

day. (N.T. 11/6/14 pgs.17[5]-179)[.]

The following day, upon further inquiry by the [c]ourt regarding

expected defense witnesses, trial counsel stated that he still

hoped that Adam Cepero and Kianni Cepero would appear,

however despite having served subpoenas on both of them, and

leaving a telephone message for Adam Cepero (at the phone

number given to [trial counsel] by [Appellant]), neither was

present to testify. Trial counsel also named two (2) character

witnesses he intended to call, but that only one, Ayeola Figueroa

was present.

The Commonwealth then advised Appellant that if [Ayeola]

Figueroa were to give character testimony, the Commonwealth

would present the rebuttal testimony of another child who was

allegedly sexually abused by Appellant. Upon considering the

Commonwealth’s proffer, [trial] counsel conferred with . . .

Appellant and advised the court that they no longer wished to call

Ayeola Figueroa.

Again, the [c]ourt engaged in a lengthy colloquy with . . .

Appellant concerning the decision not to call [Ayeola] Figueroa.

Appellant then indicated that she might change her mind and

decide that she wanted to testify. The [c]ourt instructed that she

discuss this decision privately with [trial] counsel. After doing so,

Appellant told the Court that she would not testify. She agreed

again that no one promised her anything or forced her into making

these decisions. (N.T. 11/7/19 pgs. 4-12).

* * *

[The trial c]ourt took every measure to ensure that Appellant

participated in her defense and that the decisions she made with

her counsel were made knowingly, willingly and intentionally.

Appellant assented to counsel’s decisions regarding her witnesses,

and stated that . . . there were no other witnesses that could be

called to testify. Two witnesses, including Adam Cepero, were

subpoenaed and failed to show at trial. [Appellant] agreed with

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[trial] counsel’s decision not to call [Appellant’s] daughter, Ayeola

Figueroa. With regard to Hermino Castro Jr. ([Appellant’s]

brother) and Helen Figueroa ([Appellant’s] grandmother), it was

Appellant’s obligation to advise counsel and the [trial c]ourt, when

asked, that she wanted those individuals to testify. Failure to do

so, given ample opportunity, resulted in the Appellant’s waiver of

this issue.

PCRA Ct. Op., 8/21/23, at 8-10.

We discern no error of law or abuse of discretion in the PCRA court’s

conclusion. See Sandusky, 203 A.3d 1043. Here, the record supports the

PCRA court’s conclusion that the trial court conducted thorough colloquies

regarding whether Appellant wanted to call any additional witnesses, and

Appellant confirmed on the record that she did not. See N.T. Trial, 11/6/19,

at 175-179; N.T., Trial, 11/7/19, at 4-12. The record reflects that Appellant

participated in her defense at trial, conferred with trial counsel concerning

which witnesses would and would not be called to testify, and Appellant had

ample opportunity to address this issue before the trial court. See N.T. Trial,

11/6/19, at 175-179; N.T., Trial, 11/7/19, at 4-12. Accordingly, we agree

with the PCRA court’s conclusion that the issue is waived, and Appellant is not

entitled to relief.7 See Brown, 196 A.3d at 174; PCRA Ct. Op., 8/21/23, at

10.

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7 In any event, were we to reach the merits of Appellant’s claim that trial

counsel was ineffective for failing to call these four witnesses, we would

conclude that Appellant is not entitled to relief. As the PCRA court noted,

despite a subpoena and trial counsel’s attempts to contact him by phone,

Adam Cepero failed to appear to testify at Appellant’s trial. See PCRA Ct. Op.,

8/21/23, at 10-11. Accordingly, Adam Cepero was not available as a witness

(Footnote Continued Next Page)

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For these reasons, we conclude that the PCRA court did not abuse its

discretion in dismissing Appellant’s PCRA petition without a hearing. See

Maddrey, 205 A.3d at 328 (explaining that “[t]here is no absolute right to an

evidentiary hearing on a PCRA petition” (citation omitted)); Sandusky, 203

A.3d at 1043. Accordingly, we affirm the PCRA court’s order.

Order affirmed. Jurisdiction relinquished.

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for Appellant, and trial counsel cannot be deemed ineffective for failing to call

a witness who is unwilling and unavailable to testify at trial. See Wantz, 84

A.3d at 331. Further, had Ayeola Figueroa testified concerning Appellant’s

character and reputation for being good with taking care of children, the

Commonwealth was prepared to rebut that testimony with evidence that

Appellant had sexually abused other children. See N.T., Trial, 11/7/19, at 4-

12; see also PCRA Ct. Op., 8/21/23, at 11. Under these circumstances, we

conclude that Appellant has failed to establish that the decision not to call

Ayeola Figueroa was not a reasonable trial strategy and further find that

Appellant failed to establish prejudice as we cannot conclude that Ayeola

Figueroa’s testimony would have resulted in a different outcome at trial. See

Sandusky, 203 A.3d 1043. Similarly, although Hermino Castro asserted that

he would have testified that the atmosphere in Appellant’s home was

welcoming, Appellant has not established that there was a reasonable

probability that Hermino Castro’s testimony would have resulted in a different

outcome at trial. See id. Finally, there was Helen Figueroa’s proposed

testimony that the complainant’s father allegedly forced the complainant to

lie about being assaulted by Appellant and that the complainant was in therapy

because he was a troubled child. As the PCRA court noted, it is likely that

such testimony would have been inadmissible hearsay or ruled to be unduly

prejudicial. See PCRA Ct. Op., 8/21/23, at 12. However, even if such

testimony would have been admissible, we cannot conclude that Appellant

suffered prejudice because Appellant has failed to establish that there was a

reasonable probability Helen Fugueroa’s testimony would have resulted in a

different outcome at trial. See id.; see also Sandusky, 203 A.3d at 1043.

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Date: 9/05/2024

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