Com. v. Irvine, J.

J-S03027-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JEFFERY JOHN IRVINE :

:

Appellant : No. 606 MDA 2025

Appeal from the PCRA Order Entered April 10, 2025

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

No(s): CP-60-CR-0000150-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JEFFERY JOHN IRVINE :

:

Appellant : No. 607 MDA 2025

Appeal from the PCRA Order Entered April 10, 2025

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

No(s): CP-60-CR-0000153-2021

BEFORE: DUBOW, J., BECK, J., and LANE, J.

MEMORANDUM BY BECK, J.: FILED: MAY 20, 2026

Jeffery John Irvine (“Irvine”) appeals from the order entered by the

Union County Court of Common Pleas denying his first petition filed pursuant

to the Post Conviction Relief Act (“PCRA”).1 Irvine raises various claims that

trial counsel provided ineffective assistance. Upon review, we affirm.

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

J-S03027-26

This Court previously set forth the underlying facts as follows:

On June 2, 2021, Officer Nathan Fisher of the Mifflinburg

Borough Police Department and Officer David Shaffer of the

Middleburgh Police Department were at a gas station on Route

104 in Snyder County. The two officers saw a woman, later

identified as Ashley Coen [(“Coen”)], in the front passenger seat

of a car screaming for help and saying that she was being held

against her will. [Irvine], who was the driver, pulled the car out

of the gas station onto Route 104. Both Officer Fisher and Officer

Shaffer pursued [Irvine]’s car into Union County in separate police

vehicles.

During the pursuit, the officers activated their vehicles’

emergency lights and sirens. [Irvine] did not stop, and instead

accelerated to approximately 70 to 80 miles per hour. A

pedestrian walking her dogs jumped out of the way of [Irvine]’s

car. [Irvine] eventually stopped his car. [] Coen immediately

exited [Irvine]’s vehicle and ran towards the police cars screaming

for help. At that time, the officers arrested [Irvine] on the side of

the road.

Both Officer Fisher and Officer Shaffer observed that [] Coen

had bruises on her face and arms. The officers called for an

ambulance and [] Coen was transported to Evangelical

Community Hospital. Trooper Jessica Naschke of the

Pennsylvania State Police interviewed [] Coen at the hospital.

Trooper Naschke observed that [] Coen was scared, visibly upset,

and that she had bruises on both of her eyes and on her arms.

[] Coen gave a statement to Trooper Naschke, indicating

that she had moved to Mifflinburg, Union County about two

months ago. [] Coen was living with [Irvine], who was her

boyfriend. [] Coen explained that the night before she screamed

for help, she and [Irvine] had an argument, and she slept on the

couch while [Irvine] slept in the bedroom. On the morning of June

2, [Irvine] threw food at [] Coen and yelled at her that they were

out of cigarettes. [] Coen began arguing with [Irvine], who then

choked her, dragged her to the bedroom, and punched her in the

face with a closed fist several times. [Irvine] then pulled off []

Coen’s pants and underwear and inserted his penis in her vagina.

[] Coen stated that, later that day, she convinced [Irvine] to go

out and told him that she would buy cigarettes. Once they were

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in the parking lot of the gas station, she signaled to the police

officers there that she needed help.

Hannah McDowell is a registered nurse at Evangelical

Community Hospital and has been trained as a sexual assault

nurse examiner (SANE). Nurse McDowell performed a SANE

examination of [] Coen on June 2, 2021. As part of her

examination, she took a narrative statement from [] Coen, which

she included verbatim in her report.

[Irvine] was charged with rape by forcible compulsion,

aggravated indecent assault by forcible compulsion, strangulation,

indecent assault by forcible compulsion, simple assault, and false

imprisonment at Docket No. 150-2021. The Commonwealth also

charged [Irvine] with one count of fleeing or attempting to elude

a police officer (fleeing from police), four counts of recklessly

endangering another person (REAP), and two summary violations

of the Motor Vehicle Code at Docket No. 153-2021. [The case was

held for court after a stipulated preliminary hearing, at which trial

counsel stipulated that the affiant would testify consistently with

the affidavit of probable cause.]

On September 23, 2021 and October 6, 2021, the

Commonwealth filed motions pursuant to 42 Pa.C.S. § 5964,

requesting that the trial court issue a certificate under the seal of

the court recommending that the courts in two counties in the

State of New York where [] Coen was believed to reside take []

Coen into custody to compel her attendance at trial. The trial

court granted both motions and issued the requested certificates.

On October 22, 2021, [after jury selection, but prior to trial,] the

Commonwealth filed a motion in limine. Therein, the

Commonwealth argued that [Irvine] made several phone calls to

[] Coen in which he had encouraged her not to cooperate with the

Commonwealth. Therefore, the Commonwealth requested that []

Coen’s statements to Nurse McDowell be admitted at trial under

Pa.R.E. 804(b)(6), or in the alternative under Pa.R.E. 803(4). The

Commonwealth also requested that [] Coen’s statements to

Trooper Naschke be admitted under Rule 804(b)(6).

The Honorable Michael T. Hudock held a hearing on the

Commonwealth’s motion in limine on October 25, 2021. At the

hearing, Trooper Naschke testified that she had reviewed

recordings of the calls that [Irvine] had made from to jail to []

Coen. The Commonwealth submitted a CD with the recording of

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[Irvine]’s phone calls along with a transcript of the calls, which

were admitted without objection. The Commonwealth argued that

in his calls to [] Coen, [Irvine] sought to prevent [] Coen from

attending the upcoming trial. Therefore, the Commonwealth

asserted that it was necessary to introduce [] Coen’s statements

to Nurse McDowell and Trooper Naschke as evidence at trial.

In response, [Irvine] argued that if [] Coen did not testify

at trial, then the admission of her statements would violate his

right to confront his accuser under the Sixth Amendment to the

United States Constitution. President Judge Hudock verbally

granted the Commonwealth’s motion to admit [] Coen’s

statements, but he did not place any findings of fact on the record.

See [N.T.], 10/25/[20]21, at 21-22. [President Judge Hudock

later entered a written order.]

President Judge Hudock also presided over [Irvine]’s jury

trial on October 26, 2021. During the trial, [Irvine] again objected

to the admission of a hearsay statement made by [] Coen. See

[N.T.], [10]/26/[20]21, at 17. The trial court overruled that

objection and noted that [Irvine] had a standing objection to the

admission of any of [] Coen’s hearsay statements. See id. During

the trial, both Trooper Naschke and Nurse McDowell testified

regarding [] Coen’s statements about [Irvine]’s actions. See id.

at 47-56, 63-65. Nurse McDowell also testified that [] Coen’s

injuries were consistent with being hit in the face, being choked,

and dragged across a floor. See id. at 67-70. [] Coen did not

testify at trial.

That same day, the jury convicted [Irvine] of all counts at

Docket No. 150-2021 and the felony and misdemeanor counts at

Docket No. 153-2021. President Judge Hudock found [Irvine] not

guilty of the two summary violations of the Motor Vehicle Code

charged at Docket No. 153-2021.

Commonwealth v. Irvine, 292 A.3d 1102, 2023 WL 234577, **1-3 (Pa.

Super. 2023) (non-precedential decision) (footnotes omitted).

The trial court sentenced Irvine to an aggregate term of eight and a half

to twenty-nine years in prison. The trial court also ordered Irvine to register

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pursuant to the Sexual Offender Registration and Notification Act.2 Irvine

appealed, arguing that the trial court violated his right to confront Coen under

the Sixth Amendment to the United States Constitution and Article 1, Section

9 of the Pennsylvania Constitution by admitting her hearsay statements under

Pa.R.E. 804(b)(6)3 when she did not testify at trial. This Court rejected

Irvine’s claim, finding that Irvine wrongfully procured Coen’s absence at trial,

and therefore, he forfeited his right to challenge the admission of the

statements under the Confrontation Clause pursuant to Rule 804(b)(6). Id.

at **7-8.

This Court also sua sponte found that the trial court imposed an illegal

sentence, concluding that his conviction of aggravated indecent assault

merges with his rape conviction. Id. at ** 8-11. However, because the trial

court had imposed a concurrent sentence, the panel did not remand for

resentencing. Id. at *11. Thus, this Court affirmed the judgment of sentence

in part and vacated the aggravated assault sentence. Id.

On January 16, 2024, Irvine, through his trial counsel, filed a PCRA

petition, alleging various claims of his own ineffectiveness. The PCRA court

____________________________________________

2 42 Pa.C.S. §§ 9799.10-9799.42.

3 Rule 804(b)(6) states that statements “are not excluded by the rule against

hearsay if the declarant is unavailable as a witness …” if it is “offered against

a party that wrongfully caused — or acquiesced in wrongfully causing — the

declarant’s unavailability as a witness, and did so intending that result.”

Pa.R.E. 804(b)(6).

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thus appointed new counsel to represent Irvine, who filed an amended PCRA

petition. The PCRA court held a hearing, at which trial counsel testified.

Thereafter, the PCRA court denied Irvine’s petition.4 This timely appeal

followed.

Irvine raises the following questions for our review:

I. Whether the PCRA court erred when it found that trial

counsel was not ineffective for failing to object to the

Commonwealth’s untimely motion in limine filed after jury

selection, when the Commonwealth was aware from the

beginning of the case that it was dealing with a recalcitrant

complainant who was unwilling to proceed with the

prosecution?

II. Whether the PCRA court erred when it found that trial

counsel was not ineffective for failing to object to the

introduction of [Coen’s] statements to the SANE nurse

and/or the trooper since no finding was made that those

statements even qualified as testimonial statements to be

admissible under the forfeiture by wrongdoing exception?

III. Whether the PCRA court erred when it found that trial

counsel was not ineffective for failing to object to the

introduction of [Coen’s] statements to the SANE nurse since

those statements identifying the person responsible for the

____________________________________________

4 We note that the PCRA court issued an opinion in conjunction with the order,

and addressed Irvine’s numerous claims as follows:

After an evidentiary hearing and upon review of the record, the

Court finds that none of the Appellant’s claims of ineffectiveness

of counsel have any merit. Since none of the Appellant’s claims

have any merit on their own, there cannot be prejudice from a

cumulation of meritless claims. “No amount of failed [PCRA]

claims may collectively attain merit if they could not do so

individually.” Com[monwealth] v. Blystone, 725 A.2d 1197,

1208-09 (Pa. 1999).

PCRA Court Opinion, 4/10/2025, at 3 (unnumbered).

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injuries were not relevant to diagnosis or treatment required

by Pa.R.E. 803(4)?

IV. Whether the PCRA court erred when it found that trial

counsel was not ineffective for stipulating to facts contained

in the affidavit and allowing the case to proceed past the

preliminary hearing, without the complainant, which

ultimately created the legal basis for the case to proceed to

trial?

V. Whether the PCRA court erred when it found that trial

counsel was not ineffective for failing to request a missing

witness adverse jury instruction when the complainant

failed to appear at trial?

VI. Whether the PCRA court erred when it found that trial

counsel was not ineffective for failing to request an

appropriate cautionary instruction regarding the dual lay

witness and expert testimony offered by the SANE nurse?

VII. Whether the PCRA court erred when it found that trial

counsel was not ineffective for failing to prepare for and

conduct any meaningful cross-examination of the SANE

nurse and trooper?

VIII. Whether the PCRA court erred when it found that trial

counsel was not ineffective for failing to object to the

Commonwealth’s repeated prejudicial reference throughout

trial to [Coen] as the “victim?”

IX. Whether the PCRA court erred when it found that [] Irvine

was not entitled to relief from his conviction and sentence

because of the prejudicial effects of the cumulative errors in

this case?

Irvine’s Brief at 4-5 (some capitalization omitted).

Standard of Review

“Our review of a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free form legal error.” Commonwealth v. Wilson,

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273 A.3d 13, 18 (Pa. Super. 2022) (citation omitted). Appellate courts are

bound by the PCRA court’s credibility determinations if they are supported by

the record. Commonwealth v. Rizor, 304 A.3d 1034, 1058 (Pa. 2023). An

appellate court cannot substitute its judgment for that of the finder of fact.

Id. “With respect to the PCRA court’s legal consideration, we apply a de novo

standard of review.” Commonwealth v. Lopez, 249 A.3d 993, 998 (Pa.

2021) (citation omitted).

Irvine claims sound solely in the alleged ineffective assistance of trial

counsel. To establish counsel provided ineffective assistance, a PCRA

petitioner must plead and prove, by a preponderance of evidence, that

(1) the underlying claim has arguable merit; (2) counsel had no

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

petitioner suffered prejudice as a result of counsel’s action or

inaction. Counsel is presumed to be effective, and the burden is

on the appellant to prove otherwise.

Commonwealth v. Felix, 303 A.3d 816, 819 (Pa. Super. 2023) (citations

and quotation marks omitted).

We have explained that a claim has arguable merit where

the factual averments, if accurate, could establish cause for relief.

Whether the facts rise to the level of arguable merit is a legal

determination.

The test for deciding whether counsel had a reasonable

basis for his action or inaction is whether no competent counsel

would have chosen that action or inaction, or, the alternative[]

not chosen, offered a significantly greater potential chance of

success. Counsel’s decisions will be considered reasonable if they

effectuated his client’s interests. We do not employ a hindsight

analysis in comparing trial counsel’s actions with other efforts he

may have taken.

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Prejudice is established if there is a reasonable probability

that, but for counsel’s errors, the result of the proceeding would

have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.

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. King, 259 A.3d 511, 520-21 (Pa. Super. 2021) (citation

omitted).

Failure to Object to Late Filed Motion in Limine

Irvine first argues that trial counsel was ineffective for failing to object

to the Commonwealth’s untimely motion in limine, which was filed after jury

selection. Irvine’s Brief at 15. He contends that the Commonwealth was well

aware of Coen’s reluctance to testify, noting that she refused to appear at the

preliminary hearing, and failed to maintain communication with the

prosecutor. Id. at 16-17. Irvine notes that three days after a jury was

selected and he was notified of the Commonwealth’s witnesses, which

included Coen, the Commonwealth filed a motion in limine to admit Coen’s

statements to others. Id. at 17. Irvine claims that trial counsel failed to

object to this late admission of evidence, had no reasonable basis for not

objecting, and he was prejudiced as he was denied the opportunity to confront

his accuser as a result. Id. at 17-19.

Under Pennsylvania Rule of Criminal Procedure 578, “all pretrial

requests for relief shall be included in one omnibus motion.” Pa.R.Crim.P.

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578. Further, “[e]xcept as otherwise provided in these rules, the omnibus

pretrial motion for relief shall be filed and served within 30 days after

arraignment[.]” Pa.R.Crim.P. 579. Notably, however, “[t]he omnibus pretrial

motion rule is not intended to limit other types of motions, oral or written,

made pretrial or during trial, including those traditionally called motions in

limine, which may affect the admissibility of evidence or the resolution of other

matters.” Id. “A motion in limine is a procedure for obtaining a ruling on the

admissibility of evidence prior to or during trial, but before the evidence has

been offered.” Commonwealth v. Rich, 167 A.3d 157, 160 (Pa. Super.

2017) (citation omitted).

At the PCRA hearing, trial counsel testified that he did not object to the

timeliness of the motion in limine because such motions can be “filed up to

the moment of and during trial.” N.T., 9/20/2024, at 20; see also id. at 35

(noting there is no rule that would indicate the Commonwealth’s motion was

untimely filed). Although counsel indicates he should have challenged the

timeliness of the motion, he admitted he was able to argue against the

admission of the evidence before the trial court. Id.

There is nothing in our Rules of Criminal Procedure, nor does Irvine cite

any pertinent authority, that places a filing deadline on a motion in limine. To

the contrary, Rule 578 expressly excludes motions in limine from the filing

requirements of an omnibus pretrial motion. See Pa.R.E. 578. The request

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being raised must simply be made prior to the introduction of evidence sought

to be introduced. See Rich, 167 A.3d at 160.

As noted, the Commonwealth filed the motion in limine after jury

selection, but before trial had commenced or the evidence in question had

been introduced. Thus, trial counsel would not have had a basis to object to

the Commonwealth’s motion on timeliness grounds. “Counsel will not be

deemed ineffective for failing to raise a meritless claim.” Commonwealth v.

Washington, 927 A.2d 586, 603 (Pa. 2007). Accordingly, Irvine’s

ineffectiveness claim regarding the timeliness of the motion in limine has no

arguable merit.

Failure to Object to Introduction of Coen’s Statements Through

Nurse McDowell and Trooper Naschke

Although recognizing that a defendant can forfeit his right to confront

an unavailable witness where a defendant wrongfully procures a declarant’s

absence at trial, Irvine contends that trial counsel was ineffective for failing to

object to the introduction of Coen’s statements to Nurse McDowell and Trooper

Naschke. Irvine’s Brief at 20, 22. He argues that trial counsel failed to

“question whether or not the statements made by [Coen] qualified as

testimonial statements to satisfy the forfeiture by wrongdoing standards.” Id.

at 22. He observes that counsel admitted he had no reasonable basis for

failing to raise the issue and Irvine asserts that he was prejudiced by counsel’s

failure because Coen’s statements were entered into evidence. Id.

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The United States and Pennsylvania Constitutions protect the right of

each criminal defendant “to be confronted with the witnesses against him.”

U.S. CONST. amend. VI; PA. CONST. Art. I § 9. “[T]he Confrontation Clause

prohibits admission of ‘testimonial’ hearsay unless the defendant had a prior

opportunity to cross-examine the witness who made the statement (and the

witness is unavailable at trial).” Commonwealth v. Thompson, 314 A.3d

922, 926 (Pa. Super. 2024) (citing Crawford v. Washington, 541 U.S. 36,

68-69 (2004)).

[A] statement is “testimonial” if it is the “functional equivalent” of

ex parte in-court testimony, “formalized testimonial materials,” or

made under circumstances that would lead an objective witness

to believe that the statement would be available for use at a later

trial. In making the latter determination, we can consider a

statute providing that the statement is to be used for an

evidentiary purpose. Likewise, statements given to police are

testimonial if there is no ongoing emergency and the primary

purpose of police questioning is to establish or prove past events

potentially relevant to later criminal prosecution.

Id. (citations and some quotation marks omitted). By contrast, “[w]hen a

statement is non-testimonial in nature, … the admissibility of a statement is

the concern of state and federal rules of evidence, not the Confrontation

Clause.” Commonwealth v. Smith, 351 A.3d 1245, 1270 (Pa. Super. 2026)

(citation and quotation marks omitted).

At the PCRA hearing trial counsel testified that he focused his argument

regarding the admission of Coen’s statements through the testimony of the

nurse and trooper to be violative of the Confrontation Clause. N.T.,

9/20/2024, at 21, 36. He indicated he did not argue the statements did not

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qualify as testimonial. Id. at 21. Trial counsel stated that he had no strategic

basis for failing to raise this specific objection. Id.

Although Irvine presents an ineffectiveness claim, he does not indicate

what relief counsel should have sought if he had objected to the non-

testimonial nature of the admitted statements. Pointedly, if the statements

were not testimonial, as Irvine appears to argue, the Confrontation Clause

would not be at issue, and he would have been required to present an

argument that the statements were inadmissible under a Rule of Evidence.

See Smith, 351 A.3d at 1270. He wholly fails to do so.

Moreover, this Court ostensibly found that Coen’s statements were

testimonial in determining that the statements were not precluded by the

Confrontation Clause because Irvine procured Coen’s absence at trial and Rule

804(6) therefore applied. See Irvine, 2023 WL 234577, **7-8. Thus,

Irvine’s ineffectiveness claim is without merit. See Commonwealth v.

Thomas, 323 A.3d 611, 626-27 (Pa. 2024) (rejecting appellant’s

ineffectiveness claim because appellant failed to allege or prove how counsel’s

failure impacted the development of his defense or caused him prejudice).

Failure to Object to Coen’s Statements to Nurse McDowell as

Irrelevant

Irvine argues that as a fallback option in its motion in limine, the

Commonwealth argued that Coen’s statements to the SANE nurse should be

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admitted pursuant to Pa.R.E. 803(4).5 Irvine’s Brief at 23. He contends that

Nurse McDowell testified to statements outside any diagnosis or treatment,

including identifying Irvine. Id. at 23-24. He asserts that trial counsel should

have objected to any testimony outside the parameters of Rule 803(4). Id.

at 24.

Irvine is correct that, in addition to claiming the admissibility of Coen’s

statements to Nurse McDowell under Rule 804(b)(6), it alternatively argued

for admissibility under Rule 803(4). See Commonwealth’s Motion in Limine,

10/22/2021, at 4-9. The record reflects that following a hearing, the trial

court granted the motion under both hearsay exceptions. N.T., 10/25/2021,

at 21 (“I do find based actually under both rules that the statements to the

____________________________________________

5 Rule 803(4) states the following:

The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:

* * *

(4) Statement Made for Medical Diagnosis or Treatment. A

statement that:

(A) is made for--and is reasonably pertinent to--medical

treatment or diagnosis in contemplation of treatment; and

(B) describes medical history, past or present symptoms, pain, or

sensations, or the inception or general character of the cause or

external source thereof, insofar as reasonably pertinent to

treatment, or diagnosis in contemplation of treatment.

Pa.R.E. 803(4).

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SANE nurse are admissible.”). This Court found the trial court did not abuse

its discretion under Rule 804(b)(6). See Irvine, 2023 WL 234577, **7-8.

Thus, even if we assume counsel was ineffective for failing to object to

the testimony under Rule 803(4), the trial court found it was also admissible

under Rule 804(b)(6), and this Court agreed. See id. Therefore, Irvine was

not prejudiced by counsel’s purported failure. Accordingly, his ineffectiveness

claim fails.

Stipulating To Facts Contained in the Affidavit and Allowing The Case

to Proceed

Irvine next contends that trial counsel was ineffective for stipulating to

the facts in the affidavit of probable cause and allowing the case to proceed

past the preliminary hearing, without testimony from Coen. Irvine’s Brief at

25. He argues that he was prejudiced by the failure to conduct a preliminary

hearing, as the Commonwealth’s evidence was never tested. Id. at 26. Irvine

emphasizes trial counsel admitted at the PCRA hearing that the preliminary

hearing was important and he committed a tactical error by allowing the case

to proceed. Id. at 27; see also id. at 27-28 n.1 (asserting counsel

acknowledged that if Coen had not shown up at the preliminary hearing, it

was likely she would not show up to any proceedings, which may have led to

a dismissal of the case). He claims that without the preliminary hearing, he

had no opportunity to confront Coen and a reliable determination of guilt could

not be made. Id. at 27.

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Ineffective assistance of counsel claims relating to a preliminary hearing

are cognizable under the PCRA. Commonwealth v. Stultz, 114 A.3d 865,

882 (Pa. Super. 2015). The purpose of a preliminary hearing is to avoid

incarcerating or trying a defendant without sufficient evidence to establish a

crime was committed and the defendant likely committed the crime.

Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013). However, “once

a defendant has gone to trial and has been found guilty of the crime or crimes

charged, any defect in the preliminary hearing is rendered immaterial.” Id.;

see also Stultz, 114 A.3d at 882 (“It would be incongruous to make the

prejudice analysis for purposes of PCRA review less stringent than that during

direct review.”).

At the PCRA hearing, trial counsel testified that it was a tactical error to

stipulate to the preliminary hearing. N.T., 9/20/2024, at 9. Counsel stated

that Coen did not show up to the hearing, and he believed that if she was not

at the preliminary hearing, she would not appear in the future. Id. at 11, 12,

32; see also id. at 33 (noting that it would be rare for the Commonwealth

not to call a victim at trial). According to counsel, without Coen, there was no

case. Id. at 11. At the time of the preliminary hearing, counsel was unsure

whether the case would be resolved by a plea or at trial. Id. at 32.

Here, the jury’s guilty verdict rendered immaterial any challenge to

counsel’s purported ineffectiveness regarding the preliminary hearing. See

Sanchez, 82 A.3d at 984. For the same reason, Irvine cannot establish he

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was prejudiced by counsel’s actions. See Stutz, 114 A.3d at 882.

Accordingly, Irvine’s claim is without merit.

Failing to Request Missing Witness Jury Instruction

Next, Irvine asserts that trial counsel should have requested a missing

witness adverse jury instruction because Coen failed to appear at trial.

Irvine’s Brief at 28. He highlights that only the Commonwealth had access to

Coen as a witness and his trial counsel never met her. Id. at 28-29. Trial

counsel admitted that he did not request this instruction, but should have, and

that he had no reasonable basis for failing to request the instruction. Id. at

29. Irvine claims his right to a fair trial was violated in the absence of this

instruction. Id.

A missing witness instruction is appropriate where the

witness is available to only one of the parties to a trial, and it

appears this witness has special information material to the issue,

and this person’s testimony would not merely be cumulative.

Where the party does not present the witness, the jury may be

instructed that it can infer that the testimony of the witness would

have been unfavorable.

Commonwealth v. Crumbley, 270 A.3d 1171, 1185 (Pa. Super. 2022)

(citations, quotation marks, and brackets omitted). However, a party is not

entitled to a missing witness adverse inference instruction under the following

circumstances:

1. The witness is so hostile or prejudiced against the party

expected to call him that there is a small possibility of obtaining

unbiased truth;

2. The testimony of such a witness is comparatively unimportant,

cumulative, or inferior to that already presented;

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3. The uncalled witness is equally available to both parties;

4. There is a satisfactory explanation as to why the party failed

to call such a witness;

5. The witness is not available or not within the control of the

party against whom the negative inference is desired; and

6. The testimony of the uncalled witness is not within the scope

of the natural interest of the party failing to produce him.

Commonwealth v. Miller, 172 A.3d 632, 645-46 (Pa. Super. 2017) (citation

omitted).

As explained above, we previously found that “the record establishe[d]

that [Irvine] was involved in procuring [Coen’s] unavailability as a witness and

that he acted with the intent of procuring that unavailability.” Irvine, 2023

WL 234577, at *8. Thus, there was a “satisfactory explanation” for the

Commonwealth’s failure to call Coen as a witness, and her availability was not

within the Commonwealth’s control. See Miller, 172 A.3d at 646. In making

his argument, Irvine completely ignores this Court’s finding. Accordingly,

Irvine was not entitled to the missing witness adverse inference jury

instruction, and trial counsel was not ineffective for failing to request such an

instruction. See Washington, 927 A.2d at 603.

Failing to Request a Cautionary Instruction Regarding Lay and

Expert Witness Testimony Provided by Nurse McDowell

Irvine claims that trial counsel was ineffective for failing to request a

cautionary instruction regarding the lay and expert witness testimony offered

by Nurse McDowell. Irvine’s Brief at 29. He argues that despite Nurse

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McDowell offering both fact and expert testimony, the trial court never

instructed the jury on the roles of the two types of evidence. Id. at 30. Trial

counsel admitted to failing to request the instruction and had no reasonable

basis for failing to do so. Id. According to Irvine, he was prejudiced by the

lack of an instruction because Nurse McDowell’s dual testimony increased the

risk that the jury gave her testimony undue influence in rendering the verdict.

Id. at 31.

The record reflects that at trial, Nurse McDowell was qualified as a SANE

expert. N.T., 10/26/2021, at 60. She explained that she conducted a SANE

exam on Coen on June 2, 2021 and completed a report following her

examination. Id. at 60-61. In the report, Nurse McDowell provided Coen’s

narrative statement about the incident verbatim. Id. at 63-65. She further

noted that Coen stated she had lost consciousness and that a CAT scan was

conducted on Coen’s neck. Id. at 66-67. Nurse McDowell also described

Coen’s injuries based on photographs she took at the time of the exam. Id.

at 65, 67-71.

At the PCRA hearing, trial counsel acknowledged that Nurse McDowell

provided both expert and lay testimony at trial. N.T., 9/20/2024, at 27. Trial

counsel confirmed that he did not ask for any cautionary instructions as to

Nurse McDowell’s testimony. Id. at 27, 41; see also id. at 41 (noting that

counsel had been part of other trials with SANE nurses as experts and he has

never asked for a cautionary instruction, but he still should have in this case).

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Although he stated his concern that a cautionary instruction would have

emphasized the fact that Nurse McDowell was introduced as an expert, he

separately stated he had no strategic reason for not requesting the instruction.

Compare id. at 41, with id. at 27.

As an initial matter, Irvine has not established counsel had no

reasonable basis for refusing to request a cautionary instruction. Although

trial counsel provided conflicting testimony as to whether he had a reasonable

basis for the omission, he clearly stated that he did not request a cautionary

instruction to avoid highlighting that Nurse McDowell was introduced as an

expert. As Nurse McDowell was one of the witnesses explaining what Coen

had stated regarding the incident, counsel had a reasonable basis to avoid

highlighting Nurse McDowell’s expertise to the jury. See Commonwealth v.

Johnson, 179 A.3d 1105, 1119 (Pa. Super. 2018) (“It is well-settled law that

the decision whether to seek a jury instruction implicates a matter of trial

strategy.”) (citation omitted); see also Commonwealth v. Sneed, 45 A.3d

1096, 1107 (Pa. 2012) (“Where matters of strategy and tactics are concerned,

counsel’s assistance is deemed constitutionally effective if he chose a

particular course that had some reasonable basis designed to effectuate his

client’s interests.”) (citation omitted).

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Moreover, Irvine’s bald claim of prejudice, without any supporting

evidence or argument, is inadequate.6 See Commonwealth v. Sandusky,

203 A.3d 1033, 1044 (Pa. Super. 2019) (“[B]oilerplate allegations and bald

assertions of … prejudice cannot satisfy a petitioner’s burden to prove that

counsel was ineffective.”) (citation omitted). He states that Nurse McDowell’s

testimony was given undue deference, without indicating how the instruction

would have changed the jury’s verdict. Although credibility was a significant

factor in this case, Irvine ignores the fact that Trooper Naschke also testified

about Coen’s statement made to him. Thus, Irvine did not establish that trial

counsel’s failure to seek a cautionary instruction as to the introduction of

Nurse McDowell’s testimony undermined the outcome of the trial, such that

Irvine is entitled to a new trial. Accordingly, Irvine’s ineffectiveness claim

fails.

Failing to Conduct Meaningful Cross-Examination of Nurse McDowell

and Trooper Naschke

____________________________________________

6 We note that Irvine cites to a federal case to support his argument that

counsel was ineffective on this basis. See United States v. Lopez-Medina,

461 F.3d 724, 743-45 (6th Cir. 2006) (concluding that the district court

abused its discretion in allowing the DEA agents to testify as both fact and

expert witnesses without providing the jury a cautionary instruction regarding

their dual role). “Decisions of federal courts… are not binding on this court,

but may be used as persuasive authority.” Commonwealth v. Lang, 275

A.3d 1072, 1083 (Pa. Super. 2022) (citation omitted). We do not find Lopez-

Medina to be persuasive here, particularly in light of Trooper Naschke’s

testimony regarding Coen’s statement.

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Irvine further contends that trial counsel was ineffective for failing to

meaningfully cross-examine Nurse McDowell and Trooper Naschke. Irvine’s

Brief at 32-33. He argues that trial counsel only asked Trooper Naschke “four

brief and innocuous questions” and Nurse McDowell “just one question.” Id.

at 33. Although trial counsel stated that he conducted a thorough cross-

examination, he failed to ask any questions about the circumstances

surrounding Coen’s statements at the hospital. Id. According to Irvine,

because Coen did not testify, and trial counsel sought to keep her statements

to Trooper Naschke and Nurse McDowell out of trial, counsel had no

reasonable basis for failing to conduct a “robust” cross-examination. Id. He

argues he was prejudiced because the jury only deliberated for twenty-nine

minutes before rendering a verdict. Id. at 33-34.

Trial counsel testified that he did not conduct a lengthy cross-

examination of either witness because Irvine had more to lose than to gain by

conducting a lengthy cross-examination. N.T., 9/20/2024, at 24-26, 40-41;

see also N.T., 10/26/2021, at 57, 72. The record reflects the following

exchange between trial counsel and PCRA counsel, wherein trial counsel

explained his basis for limiting his examinations:

[Trial counsel:] Often times when I’m in a position at trial where

I feel as if essentially we’ve been boxed in as the defense, I get

very concerned that something I say, something I ask about is

going to trigger a claim that we opened the door to something

else.

And by that point[,] it was pretty clear where this was going, and

I didn’t want to bring in too many opportunities for somebody to

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say oh, well, you know what, now you give them the chance to

bring this up.

[PCRA counsel:] Do you believe or did you believe that your cross-

examination as thorough under the circumstances?

[Trial counsel:] Under those circumstances, yes.

* * *

[PCRA counsel:] [W]as there any strategic reason that you had

for not questioning these witnesses on [various grounds]?

[Trial counsel:] Again, other than what I stated before. I was

worried about being faced with the you open the door trap.

[PCRA counsel:] And was there something specific that you were

concerned about if that door was opened that you didn’t want the

jury to hear?

[Trial counsel:] Well, really anything because at that point it was

fairly obvious we were hitching our wagon to the notion that this

was an unconstitutional proceeding because he didn’t have the

right to face his accuser.

N.T., 9/20/2024 at 24, 26. Trial counsel also highlighted his concern that a

lengthy examination of Nurse McDowell would have bolstered her

qualifications and testimony. Id. at 26, 37-38. Further, counsel noted that

neither Nurse McDowell nor Trooper Naschke had inconsistencies in their

testimony. Id. at 36, 37-38, 42.

The law is clear that “[m]atters concerning the examination and cross-

examination of witnesses are matters clearly within the province of trial

counsel.” Commonwealth v. Smith, 17 A.3d 873, 912 (Pa. 2011).

Irvine failed to demonstrate how further cross-examination would have

been beneficial to his defense that he did not commit the crimes. See Sneed,

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45 A.3d at 1107. Trial counsel explained his strategy was not to open the

door to additional testimony or strengthen the testimony of the two witnesses.

Further, trial counsel focused his defense on the fact Coen did not testify at

trial and Irvine’s constitutional right to confront his accuser. Under these

circumstances, trial counsel’s method of cross-examination was a reasoned,

strategic choice. It is beyond the scope of this Court’s review to second-guess

trial counsel’s trial strategy in hindsight or opine as to whether a different

strategy might have been employed. See id.

Moreover, we are not persuaded that if trial counsel had chosen to

conduct a more “robust” cross-examination of the witnesses, there was a

reasonable probability that the outcome of the trial would have been different.

Irvine points only to the jury’s quick deliberations to establish prejudice, but

presents no reasoned analysis to demonstrate that this was based upon

counsel’s cross-examination of the nurse and the trooper or even that the

outcome of the trial would have been different. See Sandusky, 203 A.3d at

1044. Thus, Irvine’s ineffectiveness claim in this regard fails.

Failing to Object to Repeated References to Coen as the Victim

In his penultimate claim, Irvine contends that trial counsel was

ineffective for failing to object to the Commonwealth’s repeated use of “victim”

to describe Coen. Irvine’s Brief at 34, 35. He argues that a prosecutor cannot

express his belief that the defendant is guilty. Id. at 34, 36. By using “victim”

to describe Coen, when she was not present at trial, “the prosecution told the

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jury that a crime was committed or that the [c]omplaintant has been injured.”

Id. at 36. In arguing he was “grossly” prejudiced, Irvine states that trial

counsel agreed that the use of “victim” was prejudicial. Id. at 35-36.7

Trial counsel acknowledged that despite Coen not appearing at trial, she

was referred to as a “victim” throughout trial. N.T., 9/20/2024, at 29. Trial

counsel stated he did not object to these references because, although he

agreed the term “victim” was prejudicial, as he understood the law, this was

permissible. Id. at 29-30, 42; see also id. at 30 (stating he did not think it

would be “fruitful” to object).

This claim is devoid of merit. The Commonwealth charged Irvine with

various sexual offenses, including rape by forcible compulsion, aggravated

indecent assault by forcible compulsion, strangulation, indecent assault by

forcible compulsion. This Court has stated that “[r]eference to the prosecutrix

in a rape case as ‘the victim’ is not an expression of … the guilt of the

defendant.” Commonwealth v. Williams, 439 A.2d 765, 768 (Pa. Super.

1982). Thus, any objection made by trial counsel would have, indeed, been

“fruitless.”

____________________________________________

7 Irvine fails to cite to any Pennsylvania case law that precludes the use of the

term “victim” at trial. See Pa.R.A.P. 2119(a) (stating argument should be

“followed by such discussion and citation of authorities as are deemed

pertinent”). Instead, Irvine cites to cases from other states and federal district

courts. Again, while such cases may be used as persuasive authority, they

are not binding on this Court. See Lang, 275 A.3d at 1083.

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Nor has Irvine established that the use of the term “victim” was

inherently prejudicial. As noted, contrary to his claim, this was not an

expression of guilt by the prosecutor. See id. Further, the trial court

instructed the jury on the presumption of Irvine’s innocence, and that

“speeches by counsel are not part of the evidence.” N.T., 10/26/2021, at 94-

95, 96. “The law presumes the jury will follow the instructions of the court.”

Commonwealth v. Eichinger, 108 A.3d 821, 846 (Pa. 2014) (citation

omitted). Therefore, Irvine is not entitled to relief on this basis.

Cumulative Errors

Lastly, Irvine argues that the cumulative errors in the case entitle him

to relief from his convictions and sentence. Irvine’s Brief at 37-39. It is well

settled, however, that “no number of failed claims may collectively warrant

relief if they fail to do so individually.” Commonwealth v. Johnson, 335

A.3d 685, 732 (Pa. 2025) (citation and brackets omitted). As discussed

above, none of Irvine’s individual ineffectiveness claims warrant relief. Thus,

“the combined effect of the errors did not deprive [Irvine] of a fair trial.” See

Sandusky, 203 A.3d at 1102.

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Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 5/20/2026

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