Com. v. Winter, B.

J-S40029-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRIAN CHARLES WINTER :

:

Appellant : No. 845 EDA 2023

Appeal from the PCRA Order Entered March 22, 2023

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

No(s): CP-23-CR-0006660-2014

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 13, 2025

Brian Charles Winter appeals pro se from the order dismissing his Post

Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

The facts of this case were previously summarized as follows:

At trial[,] the Commonwealth produced evidence that

established that on the evening of August 11, 2014, the

victims in this case, M.M., a female of 14 years of age, and

K.J[.], a female of 14 years of age, were invited to [Winter’s]

home to drink alcohol. While in his home, [Winter] did the

acts leading to his conviction. It was established [Winter],

prior to the date of the incident, had a rapport with K.J.

Earlier that day, M.M. and K.J. had spent the afternoon at

“the trestle”, a creek in the area of Drexel Hill and Clifton

Heights, where they went swimming with friends. While they

were swimming, [Winter] arrived in his car. [Winter] had a

young child along with him and he approached the girls and

spoke to K.J. At the conclusion of their discussion, the girls

and [Winter] made plans to convene later at [Winter’s]

house and drink alcohol. [Winter] told the girls that he would

get the alcohol for them.

J-S40029-24

K.J. left with [Winter] in his car and they dropped off the

young child while M.M. went home to get a change of

clothes. About an hour later, [Winter] and K.J. picked up

M.M. and they went to get alcohol. [Winter] purchased Four

Loko beer. Afterward, the three returned to [Winter’s]

home, where there were also three small children and two

adults present. M.M. and K.J. played with the children for a

short while, and then went out to the back deck to smoke

cigarettes. [Winter] poured the beer into plastic cups and

the girls drank them on the back deck. Both M.M. and K.J.

testified that the beer made them feel intoxicated.

Eventually the small children and two adults went to bed

and M.M., K.J., and [Winter] left the deck and went to the

living room and watched some television. Later the girls told

[Winter] that they were ready for bed and [Winter] said that

they could sleep upstairs in his bedroom. [Winter] told the

girls that he wanted to sleep on the couch in the living room.

When M.M. couldn’t make it up the stairs on her own,

[Winter] carried her up the stairs over his shoulder. K.J.

remained downstairs. When M.M. and [Winter] got to his

room, [Winter] laid M.M. on his bed and attempted to kiss

her. M.M. turned her head away to avoid [Winter’s]

advances and she asked him if he would go and get K.J.

[Winter] ignored M.M. and proceeded to tell her that she

“had a nice body” and touched her stomach. When he

continued to ignore her requests for K.J., M.M. began calling

K.J.’s name. [Winter] responded by telling her that she was

going to wake up the young children in the house and then

left the room to get K.J.

[Winter] returned with K.J., and instead of then going

back downstairs to the living room to sleep as he had said

he would, he remained in the bedroom. He took off his pants

and asked the girls if they had ever had a threesome. He

then lay down in bed next to them. The girls asked [Winter]

to go downstairs to the couch as he had said he would. They

also offered to go sleep on the couch instead. [Winter]

ignored these requests and attempted to put his hand in

M.M.’s pants. M.M. tried to push [Winter’s] hand away and

asked him to stop. She then moved closer to K.J. In

response, [Winter] told M.M. to calm down and he put his

hand up her shirt and touched her bra. M.M. then asked

[Winter] if he could get them some water and something to

-2-

J-S40029-24

eat. He complied, and returned with two glasses of water

and a snack.

When he returned, [Winter] climbed back into the bed in

between the girls. The girls again asked him if he would go

downstairs, and when he didn’t, they left the bedroom

together and went into the bathroom. There, the girls

decided that they would leave the house and they gathered

their belongings and ran downstairs and out the front door.

[Winter] gave chase to the girls for a short while but then

retreated home. Once they were a distance away, the girls

waved down a car and asked the driver to call 911. The girls

then went to Delaware County Memorial Hospital.

Trial Court Opinion, filed 5/1/17, at 1-3 (adopted by Commonwealth v.

Winter, No. 3545 EDA 2016, 2017 WL 5608265, at *1 (Pa.Super. filed

11/21/17) (unpublished mem.)) (citations to trial transcript omitted).

A jury convicted Winter of two counts each of corruption of minors and

indecent assault (complainant less than 16 years of age). 1 The court

sentenced him to 25 to 50 years’ incarceration. Winter filed a direct appeal,

and this Court affirmed. In November 2018, the Pennsylvania Supreme Court

denied Winter’s petition for allowance of appeal. 2

In November 2019, Winter filed a timely pro se PCRA petition. He filed

two supplemental petitions on February 24, 2020, and April 19, 2021. In

addition, he filed an application to waive appointment of PCRA counsel and

proceed pro se with standby counsel. After a Grazier hearing, the court

____________________________________________

1 See 18 Pa.C.S.A. §§ 6301(a)(1)(ii) and 3126(a)(8), respectively.

2 While the petition was pending, Winter sought leave to represent himself

and the court held a hearing pursuant to Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1988). Winter’s motion to proceed pro se was granted on April

18, 2018, and standby counsel was appointed to assist Winter.

-3-

J-S40029-24

granted the application and appointed standby counsel. The court held an

evidentiary hearing on the PCRA petition on March 16, 2022, and September

8, 2022.3 On March 22, 2023, the PCRA court dismissed Winter’s petition. This

appeal followed.

Winter raises the following issues:

1. Whether trial counsel was ineffective for their failure to

object, move for mistrial or request cautionary

instructions regarding alleged victim’s M.M.’s “little kids”

prior bad acts testimony?

2. Whether trial counsel was ineffective for their failure to

obtain/present a mental health expert, such as Dr.

Markey, to challenge or impeach the competency and/or

reliability of alleged victim K.J. with her mental health

diagnoses at, or about, the time of her allegations and

prior to trial?

3. Whether defense counsel was ineffective for their failure

to obtain K.J.’s juvenile criminal record and impeach her

on the basis of her outstanding prosecution(s) at the time

of trial?

4. Whether trial counsel’s misadvice and/or interference

with [Winter’s] right to testify at trial constituted

ineffective assistance?

5. Whether defense counsel’s overall deficient trial

performance and resulting cumulative prejudice

constituted ineffective assistance?

6. Whether counsel’s failure to withdraw as appellate

counsel or at least request a continuance prior to filing of

the initial brief and resulting interference with [Winter’s]

right to proceed pro [] se on appeal constituted

ineffective assistance?

____________________________________________

3 Winter was represented by two attorneys at trial: Joseph Malley, Esq. and

Dana Ingham, Esq. Both attorneys testified at the PCRA hearing.

-4-

J-S40029-24

7. Whether appellate counsel’s waiver of [Winter’s]

preserved sentencing challenges on appeal denied him

his right to meaningful appellate review and constituted

ineffective assistance?

8. Whether the Commonwealth’s failure to disclose K.J.’s

outstanding criminal prosecution prior to trial constituted

a Brady violation warranting a new trial?

9. Whether the mandatory-minimum sentencing provision,

42 Pa.C.S. § 9718.2, [(“the Mando”),] used to impose

[Winter’s] 25-30 year sentences, violated the following

protections guaranteed by the U.S. and Pennsylvania

Constitutions:

A. Whether use of [Winter’s] 1998 prior conviction to

trigger and impose the Mando violated the prohibition

against any ex post facto laws as commanded by Art.

1, § 9, Cl. 3 & Art. 1, § 10, Cl. 1 of the U.S.

Constitution and Pa. Const. Art. I, § 17?

B. Whether the Act of Nov. 29, 2006, P.L. 1567, No. 178,

S.B. 944, which enacted 42 Pa.C.S.[A.] § 9718.2,

violated Art. III, § 3, whereby it contained multiple

subjects and/or the purpose of § 9718.2 is not clearly

expressed in its title?

Winter’s Br. at 1-3 (PCRA court answers and footnote omitted).

On appeal from the denial or grant of relief under the PCRA, our review

is limited to determining “whether the PCRA court’s ruling is supported by the

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,

442 (Pa.Super. 2018) (citation omitted).

Claims of Ineffectiveness of Trial Counsel

Winter’s first five issues raise claims of trial counsel’s ineffectiveness.

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d

1276, 1279 (Pa.Super. 2010). To obtain relief based on a claim of

-5-

J-S40029-24

ineffectiveness, a petitioner must establish: “(1) his underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his action or inaction;

and (3) the petitioner suffered actual prejudice as a result.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Prejudice in this context means that,

“absent counsel’s conduct, there is a reasonable probability the outcome of

the proceedings would have been different.” Commonwealth v. Velazquez,

216 A.3d 1146, 1149 (Pa.Super. 2019) (citation omitted). A failure to meet

any of these prongs bars a petitioner from obtaining relief. Commonwealth

v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).

Ineffectiveness Claim for Failing to Object to M.M.’s Testimony:

Winter first claims that trial counsel was ineffective for failing to object

to, or move for mistrial or request a cautionary instruction regarding, a portion

of M.M.’s testimony.

On direct examination, the Commonwealth asked M.M. what her and

K.J.’s plan was after leaving Winter’s home on the night of the incident. M.M.

replied,

At first we weren’t going to say anything to the cops because

we didn’t want to get in trouble with our parents. But then

we thought that there was little kids in that house so we

thought that going to the cops was the right thing to do for

those little kids.

N.T. Trial, 6/29/16, at 70. Winter points out that counsel made no objection

to M.M.’s statement and instead began her cross-examination of M.M. by

asking about her statement to Sgt. Brown about how they were going to wait

-6-

J-S40029-24

until the morning to go to the police. Winter’s Br. at 35. Winter argues that

counsel “opened the door for M.M. to not only repeat the inflammatory

statement, but also M.M. doubled-down by adding ‘[K.J.] knew the little kids

so that’s why [K.J.] said we should go to the cops just in case [Winter]’s doing

something to the little kids.’” Id. (quoting N.T. Trial at 149-57) (emphasis

removed).

Winter maintains that M.M.’s testimony was improper bad acts

testimony. He argues that the testimony “implicates or suggests . . . that the

jury could reasonably infer that [he] had very possibly engaged in other

criminal sexual activity involving those ‘little kids.’” Id. at 40-41. He asserts

that the sole purpose of the testimony “was to deliberately bias the jury by

improperly leading them to believe or speculate that [Winter] had possibly

also sexually abused the ‘little kids’ too and thereby unfairly prejudice the jury

by forming in their minds fixed bias and hostility toward [him].” Id. at 40

(footnote omitted).

Rule 404(b) of the Pennsylvania Rules of Evidence bars admission of

evidence of prior bad acts to establish a person’s character and to prove that

the person acted on a particular occasion in conformity with that character.

Pa.R.E. 404(b)(1).

Here, the PCRA court found that M.M.’s testimony did not constitute

prior bad acts testimony. It explained:

[M.M.’s] testimony was merely M.M.’s state of mind at the

time of the reporting. It was not prior bad acts testimony as

M.M. did not refer to [Winter] previously abusing anyone or

-7-

J-S40029-24

any specific sexual act to prove [Winter’s] act in conformity

therewith. She merely expressed her fear for the other

children that lived in the multi-family dwelling in that they

may be at risk if she and K.J. did not report [Winter].

PCRA Court Opinion, filed 6/6/23, at 4-5.

The court did not err. M.M.’s statements were not prior bad acts

testimony. She did not testify that Winter previously abused the children in

the house or committed a specific sexual act on a minor victim. M.M. merely

explained why she and K.J. decided to go the police. Because an objection

based on prior bad acts would not have been proper, trial counsel cannot be

ineffective for failing to object. Accordingly, this claim fails. See

Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (stating

“[c]ounsel will not be deemed ineffective for failing to raise a meritless claim”).

Ineffectiveness Claim for Failing to Retain an Expert:

Winter argues that trial counsel was ineffective for failing to present a

mental health expert at trial to testify about K.J.’s mental health issues. He

asserts that trial counsel should have retained an expert to explain to the jury

how K.J.’s mental health diagnoses could have impacted her ability to perceive

and recollect the events of the night in question. Winter’s Br. at 63. Winter

maintains that an expert’s explanations of K.J.’s mental health issues would

bolster his argument that K.J. fabricated the event in retaliation after he

rejected her advances. Id. at 49.

At the PCRA hearing, Winter presented the expert testimony of Dr. John

E. Markey, a forensic psychologist. Winter points out that Dr. Markey testified

that he was “qualified as a mental health expert in criminal proceedings at the

-8-

J-S40029-24

time of the trial in the underlying case; he was available to testify for the

defense at that time; his existence was known within the forensic community,

as well as through his website, his profile on Psychology Today or by simple

Google search for ‘forensic psychologist;’ and he would have been willing to

cooperate and testify for the defense as provided below at the June 2016 trial

had counsel contacted him.” Id. at 53-54 (footnotes omitted). Dr. Markey did

not assess or examine K.J., but rather reviewed her medical records and noted

that she had been diagnosed with schizoaffective, schizophrenia and

borderline personality disorders, post-traumatic stress disorder, and

substance, drug, and alcohol related diagnoses prior to and after the time of

the incident and prior to the trial. Id. at 54-55; see also N.T. PCRA Hearing,

9/8/22, at 15-16, 49. Dr. Markey discussed the general symptoms of these

disorders, and stated that these diagnoses “would definitely leave someone to

. . . perceive a real or imagined abandonment or rejection, and then to react

to that emotionally, dramatically, behaviorally.” N.T. PCRA Hearing, 9/8/22,

at 46. Dr. Markey testified that he could have sat and listened to K.J.’s

testimony at trial and “it’s possible [he] could have made some conclusions

about [her] testimony.” Id. at 59.

The admission of expert testimony is within the discretion of the trial

court and should not be disturbed on appeal unless the trial court abuses its

discretion. Buttaccio v. Am. Premier Underwriters, Inc., 175 A.3d 311,

315 (Pa.Super. 2017). “An abuse of discretion exists where there is an

overriding or misapplication of the law, or the exercise of judgment that is

-9-

J-S40029-24

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Commonwealth v. Gross, 241 A.3d

413, 418 (Pa.Super. 2020) (internal quotation marks and citation omitted).

“[T]o demonstrate counsel’s ineffectiveness for failure to call a witness,

a petitioner must prove that the witness existed, the witness was ready and

willing to testify, and the absence of the witness’ testimony prejudiced

petitioner and denied him a fair trial.” Commonwealth v. Luster, 71 A.3d

1029, 1047 (Pa.Super. 2013) (en banc) (cleaned up). “In particular, when

challenging trial counsel’s failure to produce expert testimony, ‘the defendant

must articulate what evidence was available and identify the witness who was

willing to offer such evidence.’” Id. (quoting Commonwealth v. Bryant, 855

A.2d 726, 745 (Pa. 2004)).

Here, the PCRA court found Winter’s claim to be meritless. PCRA Ct. Op.

at 8. The PCRA court did not err. Prior to the trial, the trial court held a

competency hearing and found K.J. competent to testify at trial. Trial Ct. Op.

at 15. Based on this finding, the trial court ruled that any defense expert was

not permitted to interview K.J. Id. at 15-16. The trial court found that “there

was nothing in the record to indicate that the victim’s medical diagnoses

affected her ability to perceive or recollect the alleged events.” Id. at 16. The

court allowed defense counsel “to have his expert present in court during the

trial to observe the victim and her testimony and could then cross examine

the minor victim regarding her prescribed medication use and/or have his

expert opine on the use and the effects of said medication.” Id. at 16 n.6.

- 10 -

J-S40029-24

This Court affirmed this ruling on direct appeal. See Winter, No. 3545 EDA

2016, 2017 WL 5608265, at *3-4.

The record further indicates that trial counsel attempted to find a

defense expert, but was unable to find one that could testify within the limits

of the trial court’s order. Attorney Ingham testified at the PCRA hearing that

the defense team conducted an exhaustive search and interviewed 17

potential experts going “as far as Pittsburgh trying to find one,” but was unable

to retain an expert. N.T. PCRA Hearing, 3/16/22, at 49, 54, 56. Attorney

Ingham stated that the defense almost retained an expert, Dr. Neil S. Kaye,

but he declined to participate shortly before the trial because he determined

it would be unethical to testify without interviewing K.J. and disagreed with

the defense’s position that K.J.’s alleged medication mixed with alcohol caused

her cognitive impairment or created delusions. Id. at 56, 64-65.

There was also no indication that Winter’s proposed expert, Dr. Markey,

would have been permitted to testify at trial. The trial court limited expert

testimony to testimony about the effects of K.J.’s medication, and this Court

affirmed that ruling on direct appeal. Dr. Markey only testified at the PCRA

hearing generally about various mental health disorders and did not opine as

to the effects of medication on K.J. N.T. PCRA Hearing, 9/8/22, at 50. He

emphasized that he did not examine K.J., and he may have diagnosed her

with different diagnoses had he examined her. Id. at 49-50. Dr. Markey stated

that “we never know truly if someone’s taking their medication. I don’t know

enough about [K.J.] to say that.” Id. at 54. Dr. Markey’s proposed testimony

- 11 -

J-S40029-24

thus did not relate to K.J.’s ability to perceive events based on the effects of

medication and would be of limited, if any, value.

The PCRA also correctly found that the failure to present an expert did

not prejudice Winter. It explained:

The most important factor tending to show no prejudice is

that both K.J. and M.M. reported the same event. Even if an

expert were able to testify as to K.J. perceiving events

incorrectly based on her medication, it would not have

altered the outcome in this matter as M.M. testified to the

same event and testified to events that occurred between

her and [Winter], some of which occurred outside the view

of K.J.

PCRA Ct. Op. at 8.

We agree. Winter’s proposed expert testimony would have no bearing

on M.M.’s testimony, which corroborated K.J.’s testimony and offered

additional details of the assault when K.J. was not in the room. Thus, expert

testimony would not have likely changed the outcome of the trial.

Ineffectiveness Claim for Failing to Obtain K.J.’s Juvenile Record:

Winter argues that trial counsel was ineffective for failing to obtain K.J.’s

juvenile criminal record. He argues that he first learned at the PCRA discovery

hearing on February 28, 2021, that K.J. had an outstanding juvenile criminal

case in Delaware County for aggravated assault of a police officer that

occurred one month prior to his June 2016 trial. Winter’s Br. at 74. K.J. also

had two juvenile cases for possession of marijuana and for harassment and

simple assault in Bucks County in 2016. Winter asserts that he informed his

counsel to request and investigate K.J.’s juvenile criminal records. Id. He

- 12 -

J-S40029-24

argues that had counsel obtained K.J.’s records, they could have used “this

influential impeachment evidence to at least try to raise a doubt in the minds

of the jury as to whether K.J. is bias” and “could have also used this evidence,

in conjunction with the omitted mental health expert testimony . . . to further

demonstrate K.J.’s pattern of mental instability and violent outbursts.” Id. at

77. He also argues that counsel could have used this evidence to point out to

the jury that K.J. could not recant her allegations at trial “without risking

further serious legal trouble that could adversely impact her then-pending

cases.” Id. at 77-78.

A witness may be impeached by evidence of a criminal conviction only

if the crime involved dishonesty or false statements (“crimen falsi”). See

Pa.R.E. 609(a).

Here, the PCRA court found that trial counsel made a reasonable

decision not to obtain K.J.’s juvenile records and Winter suffered no prejudice.

It opined:

During the PCRA hearing, Attorney Ingham explained that

she did not get K.J.’s juvenile record, but did inquire as to

whether or not K.J. had any crimen falsi issues. (N.T.,

3/16/22, p. 119)[.] She further opined that the assault

arrest would not have been applicable because she was not

arrested for that crime until after the incident in this case

occurred. (Id.) Attorney Malley explained . . . it would not

have been a good tactic to attack the victim, which could

have done “more harm than good.” (N.T., 9/8/22, p. 114)[.]

Neither of these charges would have suggested that K.J. lied

about the sexual assaults by [Winter] and, as the

Commonwealth and trial counsel pointed out, attacking K.J.

about those charges may have actually done [Winter] a

disservice in front of the jury. Further, [Winter] cannot show

- 13 -

J-S40029-24

how bringing out these prior charges would have changed

the outcome of his case. As the Commonwealth pointed out

in its post-hearing brief, K.J. and M.M. had already admitted

to underage drinking; therefore[,] admitting to underage

marijuana possession would likely not have changed a thing

in front of the jury.

PCRA Ct. Op. at 8-9.

The PCRA court’s conclusions are supported by the record and are free

of legal error. K.J.’s other cases were not crimen falsi offenses. Further, the

aggravated assault offense allegedly occurred one month prior to Winter’s trial

in June 2016. Winter fails to show how this offense provided motive for K.J.

to lie in the present case, when it was undisputed that she reported Winter’s

sexual assault to the police and the hospital immediately after the incident

occurred on August 11, 2014. No relief is due.

Ineffectiveness Claim for Misadvising about Testifying:

Winter argues that trial counsel was ineffective for misadvising him

regarding his right to testify at trial. He asserts that he informed counsel that

he wished to testify on the final day of trial. Winter’s Br. at 83. Winter claims

that Attorney Malley told him, based on a sidebar conversation with the

prosecutor and the judge, that the judge would let Winter’s prior conviction

for sexual battery in Florida in 1998 come in if he testified. Id. at 82-83.

Winter maintains that his prior conviction in Florida was based on a nolo

contendere plea. Id. at 82. Citing Commonwealth v. Moser, 999 A.2d 602

(Pa.Super. 2010), he argues that evidence of a nolo contendere plea is not

admissible in later criminal proceedings. Id. at 82-83. He therefore asserts

that his prior conviction would not have been admissible at trial in this case

- 14 -

J-S40029-24

and Attorney Malley lied to him about the sidebar discussion wherein the judge

said that he would allow the prior conviction to come in. Id. at 83. According

to Winter, “had counsel not lied to or misled him about the sidebar discussion,

he most definitely would have testified on his own behalf in this trial.” Id.

(emphasis removed). Winter further points out that his prior nolo contendere

plea for sexual battery did not involve a false statement or dishonesty, and

thus, it would be irrelevant and inadmissible. Id. at 86. Winter concludes that

trial counsel should have known his conviction would have been inadmissible

at trial and since his “decision not to testify was based solely upon counsel’s

erroneous advice, his decision cannot be deemed ‘knowing’ or ‘intelligent.’”

Id. at 88 (footnote omitted).

A petitioner may prove that counsel was ineffective for failing to advise

him regarding his right to testify by demonstrating “either that counsel

interfered with his right to testify, or that counsel gave specific advice so

unreasonable as to vitiate a knowing and intelligent decision to testify on his

own behalf.” Commonwealth v. Washington, 269 A.3d 1255, 1263

(Pa.Super. 2022) (en banc) (citation omitted). Where a petitioner claims trial

counsel’s ineffectiveness caused him to not testify in his defense, the

petitioner establishes the prejudice prong of an ineffectiveness claim by

proving that he would not have waived his right to testify “absent counsel’s

ineffectiveness[.]” Commonwealth v. Walker, 110 A.3d 1000, 1005

(Pa.Super. 2015). However, “where a defendant voluntarily waives his right

to testify after a colloquy, he generally cannot argue that trial counsel was

- 15 -

J-S40029-24

ineffective in failing to call him to the stand.” Commonwealth v. Sandusky,

203 A.3d 1033, 1075 (Pa.Super. 2019) (citation omitted).

Here, the PCRA court found Winter’s issue was without merit. PCRA Ct.

Op. at 11. It determined that Winter’s contention that Attorney Malley lied to

him about the discussion wherein the judge said that he would allow the prior

conviction to come in was not credible. Id. The court further found Attorney

Malley’s testimony at the PCRA hearing that it was his understanding that the

trial judge was going to let the conviction in to be credible. Id.

The court did not err. At trial, Winter was fully colloquied on the record

about his right to testify. N.T. Trial, 6/30/16, at 99-101. Winter stated that he

understood he had the absolute right to testify or not to testify, and decided

not to testify. Id. Winter confirmed that no one had pressured him into not

testifying and he was doing so at his own free will. Id. at 100. While he stated

that he received advice from counsel, he recognized that he was permitted to

ignore that advice and “in the end, it’s [his] decision.” Id. at 101.

Although the sidebar conversation between Attorney Malley, the

prosecutor, and the judge, wherein the judge stated that Winter’s prior Florida

conviction would be admissible, was not transcribed, the trial transcript

immediately after Winter’s colloquy supports the conclusion that the court

would have let the conviction in. The following exchange occurred when

Attorney Malley explained why the defense would not be calling any character

witnesses on Winter’s behalf:

- 16 -

J-S40029-24

MR. MALLEY: We have interviewed several of the

enumerated prospective individuals, and we have decided

strategically not to call any of those witnesses so as not to

expose them to potentially damaging cross examination.

...

Which could potentially open an area where they could –

since we’ve opened the door – which could potentially open

up an avenue, since we’ve opened up the door to inquire

about your past. Do you understand that?

[WINTER]: I understand.

...

THE COURT: And it is possible that [the Commonwealth]

may bring up your prior conviction from way back. There’s

no time limitation on those is there? No 10-year period is

there?

[THE COMMONWEALTH]: No, sir.

[THE COURT]: No. No. I didn’t think so . . . What would

happen – what could come out, though, is the fact that they

are made aware of your prior conviction –

[WINTER]: Understood.

[THE COURT]: – which was something similar in nature to

this. Is that right, [Mr. Malley]?

MR. MALLEY: It is.

Id. at 102-04.

Furthermore, at the PCRA hearing, Attorney Malley testified regarding

the decision not to testify:

[THE COMMONWEALTH]: Had you discussed this prior

conviction and whether it would come out with both the

Commonwealth and the Judge?

[MR. MALLEY]: Yes.

[THE COMMONWEALTH]: Okay. And what was the Judge’s –

was it your understanding that the Judge . . .

- 17 -

J-S40029-24

[MR. MALLEY]: It was going to come in.

[THE COMMONWEALTH]: It was going to come in. And

whether or not you agreed with that decision, that’s what

Judge Mallon had decided?

[MR. MALLEY]: Correct.

[THE COMMONWEALTH]: And was there any doubt in your

mind that if Mr. Winter had taken the stand, that [the

Commonwealth], therefore, would have brought it in?

[MR. MALLEY]: No doubt whatsoever.

[THE COMMONWEALTH]: Okay. And you said that was one

reason why you didn’t want him to testify. But you said it

wasn’t the only reason. Why else did you not want him to

testify?

[MR. MALLEY]: Ms. Ingham and I both believed that

[Winter’s] demeanor may have had a negative impact on

the jury.

N.T. PCRA Hearing, 9/8/22, at 118.

Defense counsel thus had other reasons in advising Winter not to testify.

See id. at 97.

We find the PCRA court’s determination to be supported by the record

and free of legal error. Winter has failed to prove his trial counsel interfered

with his right to testify and has not explained how trial counsel’s advice not to

testify was unreasonable. Washington, 269 A.3d at 1263.4

____________________________________________

4 To the extent Winter claims that his prior nolo contendere plea would not

have been admissible under any circumstances, he has not proved that the

court would have abused its discretion if it had admitted it. “While the rules of

evidence bar the introduction of a plea of nolo contendere for purposes other

than impeachment, the Commonwealth may introduce evidence of [an

a]ppellee’s prior bad acts through other means so long as it can demonstrate

the probative value of the evidence outweighs the prejudicial impact.” Moser,

999 A.2d at 607 n.8.

- 18 -

J-S40029-24

Ineffectiveness Claim for Overall Deficient Trial Performance:

Winter argues that trial counsel was ineffective for their overall deficient

trial performance. He claims that even if we determine his individual claims

fail due to lack of prejudice, he nevertheless is entitled to relief because of the

cumulative prejudice caused by counsel’s ineffectiveness.

Because we have determined that there were no errors warranting

relief, Winter’s allegation of cumulative error fails. See Commonwealth v.

Tedford, 960 A.2d 1, 56 (Pa. 2008) (citation omitted) (“[N]o number of failed

claims may collectively warrant relief if they fail to do so individually”).

Claims of Ineffectiveness of Appellate Counsel

Winter’s sixth and seventh issues claim that appellate counsel was

ineffective.

In his sixth issue, Winter argues that his appellate counsel, Attorney

Malley, was ineffective for failing to withdraw as counsel or request a

continuance prior to filing the initial brief on direct appeal, resulting in

interference with Winter’s right to proceed pro se on appeal. He notes that his

appellate brief in his direct appeal was due on June 12, 2017, and he sent

Attorney Malley a later dated May 15, 2017, informing him that he would be

seeking his termination and instructing him not to file any documents on

Winter’s behalf. Winter’s Br. at 92-94. Winter claims that he filed an

emergency petition to terminate Attorney Malley and proceed pro se, along

with a motion for continuance, on May 25, 2017. Id. at 94. Winter recognizes

that this Court forwarded these documents to his appellate counsel and

- 19 -

J-S40029-24

attached a Jette5 letter stating that the documents were considered “unfiled.”

Id. Winter maintains that appellate counsel filed an appellate brief on June

12, 2017, “unbeknownst to [him.]” Id. However, he argues that once

appellate counsel received notification that Winter wished to terminate him,

counsel had a duty to cease preparation and filing of the brief, and, if

necessary, request a continuance/time extension from this Court or file a

motion to withdraw. Id. at 96. According to Winter, appellate counsel’s

“decision to ignore [his] wishes and failure to a motion to withdraw and/or

request a continuance prior to the filing of the initial brief . . . effectively

violated and/or interfered with [his] right to represent himself pro [] se on

appeal” and “the prejudice is manifest where it would have been [Winter] (not

counsel) filing the initial brief in his direct appeal – resulting in ineffective

assistance of appella[te] counsel and warranting reversal for new direct appeal

nunc pro tunc in this case.” Id. at 97-98.

“An attorney who has been retained or appointed by the court shall

continue such representation through direct appeal or until granted leave to

withdraw by the court[.]” Pa.R.Crim.P. 120(A)(4); see also Commonwealth

v. Librizzi, 810 A.2d 692, 693 (Pa.Super. 2002) (stating “once an appearance

is entered, the attorney is responsible to diligently and competently represent

the client until his or her appearance is withdrawn,” which “includes filing an

appeal when the client so requests”).

____________________________________________

5 Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).

- 20 -

J-S40029-24

Here, at the time that Winter’s appellate brief on direct appeal was due,

Attorney Malley was Winter’s attorney of record. Attorney Malley was thus

obligated to competently represent Winter, which included the filing of a timely

brief unless his appearance was withdrawn by leave of court. When Winter

asked Attorney Malley at the PCRA hearing why he filed the appellate brief

despite Winter’s instructions to the contrary, Attorney Malley correctly

explained:

[U]ntil the Court lets me out, I’m in. You and I are married

until I ask for leave of court or you ask for leave of court,

and the court specifically lets me out and nominates another

attorney or allows you to walk this slippery slope yourself.

N.T. PCRA Hearing, 9/8/22, at 104.

Counsel cannot be deemed ineffective for doing what he was legally and

ethically obligated to do. This claim is without merit.

In his seventh issue, Winter argues that appellate counsel was

ineffective for waiving his sentencing challenges on direct appeal. Winter

claims that he informed counsel that he wanted to raise a constitutional

challenge to the mandatory minimum sentencing provision under 42 Pa.C.S.A.

§ 9718.2, but counsel failed to do so. Winter’s Br. at 99. Winter argues that

counsel’s failure to raise this claim constituted ineffective assistance of

counsel.

At the PCRA hearing, Attorney Ingham and Attorney Malley both

testified that they advised Winter not to go to trial because of the potential

mandatory minimum sentences he was facing. N.T. PCRA Hearing, 9/8/22, at

- 21 -

J-S40029-24

116-17; N.T. PCRA Hearing, 3/16/22, at 218-21. Counsel stated that Winter

was informed that he would be subject to the 25-to-50-year mandatory

minimum if he was convicted. N.T. PCRA Hearing, 9/8/22, at 117-18; N.T.

PCRA Hearing, 3/16/22, at 221. Counsel thus considered the implications of a

conviction under the statute.

Further, the Pennsylvania Supreme Court has upheld the

constitutionality of 42 Pa.C.S.A. § 9718.2. See Commonwealth v. Baker,

78 A.3d 1044, 1045 (Pa. 2013). Thus, defense counsel had a reasonable basis

for choosing not to raise this issue on appeal. Accordingly, this claim fails. See

Spotz, 896 A.2d at 1210 (stating “[c]ounsel will not be deemed ineffective for

failing to raise a meritless claim”).

Brady Issue

Winter argues that the Commonwealth’s failure to disclose K.J.’s

outstanding criminal prosecution prior to trial constituted a Brady6 violation.

He maintains that he first learned at the PCRA discovery hearing on February

28, 2021, that K.J. had been arrested and charged with committing

aggravated assault of a police officer one month prior to his June 2016 trial.

Winter’s Br. at 107. Winter asserts that the Commonwealth had an obligation

to disclose K.J.’s then-pending prosecution for her aggravated assault to the

defense prior to trial “because the defense could have marshalled this vital

impeachment evidence to at least cast a shadow upon K.J.’s credibility on the

____________________________________________

6 See Brady v. Maryland, 373 U.S. 83 (1963).

- 22 -

J-S40029-24

basis that she was bias and/or had an ulterior motive for her testimony[.]”

Id. at 108.

To establish a Brady violation, the claimant must prove: “(1) the

evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) prejudice ensued.”

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted).

As to Brady claims advanced under the PCRA, a claimant must establish that

the alleged Brady violation “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

Commonwealth v. Ly, 980 A.2d 61, 76 (Pa. 2009) (citation omitted).

Here, the PCRA court found that K.J.’s pending juvenile case was not

material for purposes of Brady. PCRA Ct. Op. at 13. The court did not err.

Winter fails to establish that had the information been disclosed to the

defense, there is reasonable probability that its production would have caused

a different result at trial. K.J.’s aggravated assault arrest occurred one month

before Winter’s trial, which was well after K.J. and M.M. reported the instant

sexual assault. Thus, the disclosure of K.J.’s aggravated assault charge would

have had minimal impeachment value to K.J.’s testimony in the present case,

as those charges were unrelated and did not demonstrate any propensity for

dishonesty. This claim fails.

- 23 -

J-S40029-24

Sentencing Claims

Winter’s final claims are constitutional challenges to the mandatory-

minimum sentencing provision under 42 Pa.C.S.A. § 9718.2. Winter first

claims that using his prior conviction for sexual battery in Florida in 1998 to

trigger his mandatory minimum sentence violated the prohibition against ex

post facto laws. Winter’s Br. at 114-15. He maintains that the mandatory-

minimum sentencing provision under 42 Pa.C.S.A. § 9718.2 took effect on

January 1, 2007, “nearly nine years after the initial/triggering offense was

alleged committed, and, thus, retroactively applied in this case.” Id. at 114

(emphasis removed).

Section 9718.2 provides that if a defendant has been convicted of an

enumerated offense and already has a prior enumerated conviction, that he

be sentenced to a minimum sentence of at least 25 years of total confinement:

(a) Mandatory sentence.--

(1) Any person who is convicted in any court of this

Commonwealth of an offense set forth in section 9799.14

(relating to sexual offenses and tier system) shall, if at the

time of the commission of the current offense the person

had previously been convicted of an offense set forth in

section 9799.14 or an equivalent crime under the laws of

this Commonwealth in effect at the time of the commission

of that offense or an equivalent crime in another jurisdiction,

be sentenced to a minimum sentence of at least 25 years of

total confinement, notwithstanding any other provision of

this title or other statute to the contrary. Upon such

conviction, the court shall give the person oral and written

notice of the penalties under paragraph (2) for a third

conviction. Failure to provide such notice shall not render

the offender ineligible to be sentenced under paragraph (2).

***

- 24 -

J-S40029-24

(b) Mandatory maximum.--An offender sentenced to a

mandatory minimum sentence under this section shall be

sentenced to a maximum sentence equal to twice the mandatory

minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating

to sentence of imprisonment for felony) or any other provision of

this title or other statute to the contrary.

42 Pa.C.S.A. § 9718.2(a)(1), (b).

In Baker, the Pennsylvania Supreme Court upheld the constitutionality

of 42 Pa.C.S.A. § 9718.2. 78 A.3d at 1045.

“A state law violates the ex post facto clause if it was adopted after the

complaining party committed the criminal acts and inflicts a greater

punishment than the law annexed to the crime, when committed.”

Commonwealth v. Vaughn, 770 A.2d 287, 289 n.2 (Pa. 2001) (internal

quotation marks and citation omitted). “[C]entral to the ex post facto

prohibition is a concern for the lack of fair notice and governmental restraint

when the legislature increases punishment beyond what was prescribed when

the crime was consummated.” Commonwealth v. McGarry, 172 A.3d 60,

68 (Pa.Super. 2017) (citation omitted, emphasis removed). “[I]n discussing

recidivist statutes and ex post facto implications, courts have consistently

noted that defendants are being punished not for the earlier criminal acts and

convictions, but for the subsequent crime that occurred after the passage of

the pertinent recidivist statute.” Commonwealth v. Rose, 81 A.3d 123, 135

(Pa.Super. 2013) (en banc).

Here, the crimes for which Winter was convicted took place in August

2014, years after Section 9718.2 was enacted. Because Winter committed the

- 25 -

J-S40029-24

crimes long after the statute had been enacted, Winter’s claim of an ex post

facto violation is without merit.

Winter lastly claims that Section 9718.2 violates Article III, Section 3 of

the Pennsylvania Constitution because it contains more than one subject, and

the purpose of the statute is not clearly expressed in its title. Winter’s Br. at

116. He argues that that the statute’s title, “Sentences for sexual offenders,”

would lead a reasonable person to believe that the statute merely contains

standard or general sentencing provisions for sexual crimes, but it instead

contains an increased mandatory sentence for repeat sexual offenders. Id. at

119-20. Winter further argues that the subjects in the statute are not germane

to each other and the subjects are intended “to accomplish separate and

dissociated objectives of legislature effort[.]” Id. at 121.

“[A]cts passed by the General Assembly are strongly presumed to be

constitutional, including the manner in which they were passed.” Pa. State

Ass’n of Jury Comm’rs v. Commonwealth, 64 A.3d 611, 618 (Pa. 2013).

Thus, a statute will not be found unconstitutional “unless it clearly, palpably,

and plainly violates the Constitution.” Id. (citation omitted). If there is any

doubt as to whether a challenger has met this high burden, then we will

resolve that doubt in favor of finding the statute constitutional. Id.

The single subject rule of Article III, Section 3 of the Pennsylvania

Constitution states that “[n]o bill shall be passed containing more than one

subject, which shall be clearly expressed in its title, except a general

appropriation bill or a bill codifying or compiling the law or a part thereof.” Pa.

- 26 -

J-S40029-24

Const. art. III, § 3. In adopting Article III, Section 3, our framers and the

electorate sought to eliminate two legislative practices: first, “the insertion

into a single bill of a number of distinct and independent subjects of legislation

in order to deliberately hide the real purpose of the bill,” and second, “the

practice of ‘logrolling’ which involves ‘embracing in one bill several distinct

matters, none of which could singly obtain the assent of the legislature, and

procuring its passage by combining the minorities who favored the individual

matters to form a majority that would adopt them all.’” Commonwealth v.

Neiman, 84 A.3d 603, 611 (Pa. 2013) (citation omitted).

The single subject rule also furthers the efficiency of the legislative

process, as

[t]he requirement that each piece of legislation pertain to

only one subject creates a greater likelihood that it will

receive a more considered and thorough review by

legislators than if it is aggregated with other pieces of

legislation pertaining to different topics into a singular

“omnibus bill,” thereby creating a “jumbling together of

incongruous subjects.”

Id. (citation omitted). Pursuant to the single subject rule, “the title of the bill

must clearly express the substance of the proposed law” and “the differing

topics within the bill must be ‘germane’ to each other.” Commonwealth v.

Brooker, 103 A.3d 325, 337 (Pa.Super. 2014) (citation omitted).

Here, we conclude that Section 9718.2 does not violate the single

subject rule. “The generally recognized purpose of such graduated sentencing

laws [such as Section 9718.2] is to punish offenses more severely when the

defendant has exhibited an unwillingness to reform his miscreant ways and to

- 27 -

J-S40029-24

conform his life according to the law.” Commonwealth v. Helsel, 53 A.3d

906, 913 (Pa.Super. 2012) (citation omitted). Section 9718.2 plainly sets forth

the mandatory minimum sentences for recidivist sexual offenders and is

limited to that issue. The other topics in the statute, including proof of

sentencing and authority of the court in sentencing, are germane to the

primary purpose of the statute. Winter’s final claim is thus without merit.

Order affirmed.

Date: 2/13/2025

- 28 -