# Com. v. Thompson, D. > Superior Court of Pennsylvania · June 25, 2019 URL: https://www.frixlaw.com/law-library/cases/4409972 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** June 25, 2019 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4409972 ## Opinion text J-S06009-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DESEAN M. THOMPSON : : Appellant : No. 1776 EDA 2018 Appeal from the PCRA Order Entered May 25, 2018 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004424-2012 BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BOWES, J.: FILED JUNE 25, 2019 Desean M. Thompson appeals from the order that denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm. The PCRA court summarized the history of this case as follows. [Appellant] was arrested and charged with five counts of rape by threat of forcible compulsion, four counts of involuntary deviate sexual intercourse by threat of forcible compulsion, five counts of sexual assault, two counts of aggravated indecent assault, five counts of indecent assault and one count of terroristic threats. These charges arose from [Appellant]’s assault on a 21 year old victim in a public park in Coatesville, Chester County, Pennsylvania, on August 5, 2012. [Appellant] and the victim, who did not know one another prior to the night in question, met in a bar and then walked to Ash Park where [Appellant] repeatedly raped the victim and threatened her with the blade of a knife, over a period of several hours. Following a three day jury trial, on October 9, 2013, [Appellant] was found guilty of all counts charged. On November 18, 2014, [Appellant] was sentenced to an aggregate sentence of 20½ to 45 years imprisonment on five counts of rape and one count of terroristic threats. By order dated October 3, 2014, [Appellant] was determined to be a sexually violent predator J-S06009-19 pursuant to 42 Pa.C.S.A. § 9799.24, subject to the lifetime registration requirements under 42 Pa.C.S.A. §§ 9799.10 et seq. On December I, 2014, [Appellant] filed a post sentence motion . . . for reconsideration and reduction of sentence and . . . challenging the sufficiency of evidence and . . . the weight of the evidence. By order dated February 2, 2015, [Appellant]’s motion for a new trial was denied; however, [Appellant]’s motion for reconsideration of sentence was granted. On April 17, 2015, [Appellant] was sentenced to an aggregate sentence of 18 to 45 years incarceration on five counts of rape and one count of terroristic threats. . . . On February 2, 2016, the Superior Court affirmed [Appellant]’s sentence. [Appellant, through counsel,] timely filed a PCRA [petition] on January 27, 2017[,] alleging trial counsel was ineffective[.] PCRA Court Opinion, 5/25/18, at 1-2 (footnote and unnecessary capitalization omitted). After a hearing at which Appellant and trial counsel testified, the PCRA court denied Appellant’s petition by order and opinion of May 25, 2018. This timely appeal followed, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.1 Appellant presents this Court with the following questions: Was it error to deny the PCRA Petition which established that Appellant’s conviction and sentence resulted from the ineffective assistance of counsel which, in the circumstances of this particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place[?] Specifically, Appellant alleges that the court should have found that Appellant suffered from the ineffective assistance of counsel in that: ____________________________________________ 1 On February 18, 2019, Appellant filed in this Court a petition to supplement the record, as the notes of testimony from the PCRA hearings were not included in the certified record. This Court granted the petition by order filed March 5, 2019, and the transcripts were received on May 10, 2019. -2- J-S06009-19 A. [Counsel should] have filed and litigated a motion to suppress Appellant’s statements after Appellant invoked his Fifth Amendment right to counsel by advising the interrogating detective that he desired an attorney. And Appellant requested this motion to be filed by counsel and the failure to file such motion lacked any reasonable basis[.] B. [Counsel should] have objected and moved for a mistrial based on several references at trial, especially during the Commonwealth’s closing argument, to the fact that Appellant failed to speak with or come into the Coatesville Police Station to speak with Detective [Sean] Dowds during his investigation[.] C. [Counsel should] have objected to improper and unfounded expert testimony elicited from lay witnesses by the Commonwealth. Specifically: 1. Testimony presented by the SAFE nurse, Marvin Jackson[,] wherein he testified that there is often no bruising in the genital area and there have been studies comparing consensual versus nonconsensual sex which show that in 80-90% of the nonconsensual cases there will be no bruising in the genital area. This witness was not qualified as an expert in any field and had no basis to render the hearsay opinion he did regarding bruising; 2. Testimony presented by Coatesville Detective Sean Dowds when he testified as an expert regarding information available in cell phone records. Detective Dow[ds] testified that a phone record of any kind would not be able to corroborate whether or not a cell phone was dead or had power at any given time. There was no foundation laid for this opinion and this testimony was improper[.] D. [Counsel should] have objected and moved for a mistrial based on the fact that Detective Dowds testified that he included information in his report and about his meeting at Ash Park with Mikea Hines, but that report was never turned over to the defense in violation of mandatory discovery[.] Appellant’s brief at 7-9 (citations and unnecessary capitalization omitted). -3- J-S06009-19 We begin with the legal tenets pertinent to our review. “Our standard of review for issues arising from the denial of PCRA relief is well-settled. We must determine whether the PCRA court’s ruling is supported by the record and free of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156 (Pa.Super. 2018) (internal quotation marks omitted). Further, “[i]t is an appellant’s burden to persuade us that the PCRA court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012). Appellant’s claims relate to allegations that his trial counsel rendered ineffective assistance. Counsel is presumed to be effective, and a PCRA petitioner bears the burden of proving otherwise. Commonwealth v. Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, the petitioner must plead and prove (1) the legal claim underlying his ineffectiveness claim has arguable merit; (2) counsel’s decision to act (or not) lacked a reasonable basis designed to effectuate the petitioner’s interests; and (3) prejudice resulted. Id. The failure to establish any prong is fatal to the claim. Id. at 113. “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.” Commonwealth v. Sandusky, 203 A.3d 1033, 1044 (Pa.Super. 2019) (cleaned up). Rather, “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.” Becker, supra at 117 (internal quotation -4- J-S06009-19 marks omitted). “A finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Id. (internal quotation marks omitted). In order to satisfy the prejudice prong, “the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.” Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). With these principles in mind, we turn to the claims of error presented by Appellant. First, Appellant argues that the PCRA court erred in denying his claim that trial counsel, Loreen M. Kemps, Esquire, was ineffective in failing to move to suppress his statements made to police after Appellant had invoked his right to counsel. Appellant’s brief at 21-27. The PCRA court addressed Appellant’s contention as follows. Even if we were to determine that [Appellant’s] argument has merit, a reasonable basis existed for not filing a suppression motion. It was established by the testimony of Ms. Kemps that the defense, from the beginning, was that [Appellant] and the victim had engaged in consensual intercourse. The only way to present this evidence to the jury would be through this recorded interview or through [Appellant]’s testimony. Ms. Kemps testified that the better strategy would be to allow the statement into evidence and [Appellant] would not have to testify. Ms. Kemps testified that she was not confident that [Appellant] could withstand cross examination. . . . Ms. Kemps was not willing to take that risk; therefore, as part of her trial strategy, she did not file a suppression motion and allowed the statement to be entered into evidence. The jury was able to hear the facts as presented -5- J-S06009-19 by [Appellant], without putting [Appellant] on the witness stand. Ms. Kemps testified that she explained this strategy to [Appellant] on more than one occasion. [Appellant] testified that it was his decision alone not to testify at trial. Therefore, because trial counsel had a reasonable basis for not pursuing a motion to suppress, [Appellant]’s claim of ineffective assistance of counsel is without merit. PCRA Court Opinion, 5/25/18, at 10-11. We discern no reason to disturb the PCRA court’s determination. The record supports its recitation of the facts. See N.T. PCRA Hearing, 4/4/18, at 22-26 (trial counsel testifying that the admission of the statement was the best way to present Appellant’s claim of consent, as well as to demonstrate his cooperation with the police investigation, as the statement contained the information she would have elicited from Appellant if he testified, but he would not be exposed to hostile cross examination); N.T. Trial, 10/9/13, at 81-88 (Officer Dowd testifying to Appellant’s description of a consensual encounter). Counsel’s decision was reasonably designed to effectuate Appellant’s interests. See Commonwealth v. Rosario, 652 A.2d 354, 367 (Pa.Super. 1994) (“We cannot say that counsel was ineffective for failing to seek suppression of appellant’s statement . . . regardless of how it was obtained, in light of the fact that it formed the basis for his defense.”). Moreover, Appellant’s bald claims of prejudice do not satisfy his burden of establishing that the result of the trial would have been different had the statement not been entered to further his consent defense. Accordingly, no relief is due on this issue. -6- J-S06009-19 Next, Appellant contends that the PCRA court erroneously denied his claim that trial counsel rendered constitutionally-deficient performance in failing to move for a mistrial when Detective Dowds made references to Appellant’s pre-arrest silence “as a tacit admission of guilt.” Appellant’s brief at 28. Appellant relies upon our Supreme Court’s plurality decision in Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014) (OAJC), that “the use of pre-arrest silence as substantive evidence of guilt violates a non-testifying defendant’s constitutional rights.” Id. at 432. The PCRA court concluded that, unlike the defendant in Molina, Appellant never refused to speak with Detective Dowds, but rather was the one who initiated contact and told the detective that he wanted to talk with him when Appellant returned to Coatesville from Philadelphia. PCRA Court Opinion, 5/25/18, at 14. The court thus found Molina distinguishable in that Appellant never invoked his right to remain silent. Id. at 15. The PCRA court further determined that trial counsel acted reasonably in deciding to use the testimony about Appellant’s contact with the police elicited on cross examination to support his theory of the case: that he had engaged in consensual sex with the victim and cooperated with law enforcement. Id. at 14-15. The trial testimony in question is as follows: Q And can you please tell the jury when and how you first attempted to interview the [Appellant]? -7- J-S06009-19 A I had heard that the [Appellant] had left town. I requested first to his girlfriend, Ashley Harris, if she would please have him call me. I also attempted to call him. He actually called me back. I spoke with him, I asked him to come in and speak with me so that I could interview him regarding the sexual assault. Q When he called you back again, can you tell the jury when you first made phone contact with [Appellant]? A I believe I first made phone contact with him September 10th. Q Okay. And when you made phone contact with him on September 10th, what did you tell him? A I asked him if he would please come in and talk to me about the events that happened on August 4th and 5th of 2012. Q And in the course of those conversations, did [Appellant] give you any indication that he knew what you were talking about, that he knew what events that you wanted to talk to him that occurred in August? A He did. Q What did he tell you in this phone conversation? A He told me that he had met a girl at the Kool Bar, he was intoxicated, he was high on wet, and he doesn’t remember exactly what happened but knows he didn’t rape that girl. Q And after he told you that, what did you ask him to do? A I asked him to come in and tell me his story. Q And did the [Appellant] tell you where he was when you were on the phone? A He did. Q Where did he say he was at that point? A In Philadelphia. -8- J-S06009-19 Q After you spoke to the [Appellant] on September 10th, 2012, did he come in to tell you what had happened? A No, he did not. Q Did you make any efforts to -- further efforts to reach out to him? A I did. Q Can you describe that to the jury. A I called him another time and asked him to come in and speak with me. I said I hadn’t talked to him for a while, I thought he was going to come in and speak with me, and that I was trying to make another attempt to get him to come. Q And what was the [Appellant]’s reaction to that? Did he come right away? A No, he did not. Q What did he tell you in terms of coming in? A He said he needed to speak to an attorney. He would come in sometime in October, I believe. Q And in October did the [Appellant] come in and speak to you? A No, he did not. Q At some point were you finally able to speak to the [Appellant]? A I was. Q And can you tell the jury how it was that you were finally able to speak to the [Appellant]? A I spoke to him after we picked him up on the warrant that I filed. -9- J-S06009-19 Q And do you recall and can you tell the jury what date it was that he was arrested on that warrant? A I believe it was November 19th, 2012. N.T. Trial, 10/9/13, at 76-78. Counsel wove the testimony into closing arguments, advocating as follows: [Appellant] goes back to the same bar the very next day with a friend of his. . . . While he is there somebody comes in and that is the first he hears anything about a possible rape. Does he deny being in the park? No. He says, according to his statement, I didn’t rape that girl. I didn’t rape that girl. He calls the police when asked to. If you follow the sequence, the police tell [Appellant’s] ex- girlfriend or girlfriend, to call him. At some point he calls them. He says he wants to come in. Says he is not in the Coatesville area, but he gives them a telephone number as to where he can be reached. They don’t say to him right then and there we have a warrant for your arrest, you have to come in. There is no testimony to that effect. He says he needs to get back to Coatesville. He is not in Coatesville at that time. He is not hiding where he is. The Detective calls him two weeks later on the number that he gave. He answers the phone and, again, he talks to the Detective. There is no indication here that there were a series of phone calls that weren’t returned, that there were attempts or hang-ups or that they had to track down other numbers. And, again, he says I’ll probably be back in October. I want to come in and talk to you. And he is doing what the logical thing would be, I submit to you, hoping to get money for an attorney to help him because he believes there may be some accusations that are going to be filed against him. N.T. Trial, 10/9/13, at 125-26. - 10 - J-S06009-19 Appellant has failed to convince us that the PCRA court abused its discretion in denying this claim. The testimony at issue contains no indication that Appellant invoked his right to remain silent by refusing to speak to the police. Cf. Molina, supra at 433 (“I asked him if he could come into our office and sit down and talk with me about the case, and he refused. He said he refused to come in.”). Further, given counsel’s use of the testimony to support Appellant’s trial strategy, Appellant failed to establish the lack-of-a- reasonable-basis prong of the claim. No relief is due. Appellant’s remaining issues concern trial counsel’s failure to object to expert testimony offered by lay witnesses, and the Commonwealth’s failure to turn over a report covered by mandatory discovery. Appellant’s brief at 35- 44. Upon a review of the certified record, the parties’ briefs and the relevant law, we discern no abuse of discretion on the part of the PCRA court as to these issues, and we affirm the order denying his PCRA claims on the basis of the opinion that the Honorable Jacqueline C. Cody entered on May 25, 2018. See PCRA Court Opinion, 5/25/18, at 16-20 (discussing Appellant’s failure to establish the prejudice prong regarding the claim that counsel should have objected to improper expert testimony); id. at 22-26 (explaining that Appellant failed to prove that the outcome would have been different had counsel objected to a discovery violation, as the report at issue was consistent with the evidence at trial). - 11 - J-S06009-19 As Appellant has not met his burden of convincing this Court that the PCRA court’s rulings were the product of an abuse of discretion or an error of law warranting relief from this Court, see Miner, supra at 688, we affirm the order denying his petition. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/25/19 - 12 - Circulated 05/31/2019 03:12 PM COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COiv11v10N PT ,EAS CHESTER COUNTY, PENN!)YLV /\NIA vs. CRBvffNAL ACTION DESEAN THOMPSON NO. CP-15-CR-000,11124-20 l 2 Erik T. Walschburger, Esquire, Deputy District Attorney, on behalf of the Commonwealth of . Pennsylvania '. Colin R. Hueston, Esquire, on behalf or Defendant MEMORANDU M_OPIN ION This matter is before the Court for consideration of Defendant's Petition for Relief Pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 954 I et seq. (PCR.1-\). Defendant asserts that he was deprived of effective assistance of counsel and seeks 10 have his sentence vacated and the matter remanded for a new trial. The Commonwealth responds that Defendant's allegations of ineffective assistance of counsel are without merit; therefore, the petition should be dismissed. Defendant was arrested and charged with five counts of rape by threat of forcible compulsion, four counts of involuntary deviate sexual intercourse by threat of forcible compulsion, five counts of sexual assault, two counts of' aggravated indecent assault, five counts of indecent assault and one count oi terroristic threats These charges arose from Defendant's assault on a 21 year old victim in a public park in Coatesville, Chester County, Pennsylvania, on August 5, 201�. Defendant and the victim, who did not know one another prior 10 the night in question, met in a bar and then walked to Ash Park where Defendant repeatedly raped the victim and threatened her with the blade of a knife, over a period of several hours. ''} • \.t.., .,.. lo \ Following a three day jury trial, on October 9, 20 l 3, Defendant was found guilty o [ all counts charged. On November 18, 2014. De fend ant was sentenced lo an aggregate sentence of 20 Y2 to 4 5 years imprisonment on five counts of rape and one count of terroristic threats.' 13y Order elated October 3, 2014, Defendant was determined lo be asexually violent predator pursuant to 42 Pa.C.S.A. § 9799.24, subject to the lifetime registration requirements under 42 Pa.C.S.A. §§ 9799. 10 er seq. On December l , 20 l ·1, Defendant filed a Post Sentence Motion Pursuant to Rule 720 for Reconsideration and Reduction of Sentence and New Trial Pursuant to Rule 606 Challenging the Sufficiency of Evidence and Rule 607 Challenging the Weight of the Evidence. By Order dated February 2, 2015, Defendant's Motion for a New Tria] was denied; however. Defendant's Motion for Reconsideration of Sentence was granted. On April 17, 20 l 5, Defendant: I was sentenced to an aggregate sentence of 18 lo 4 5 years incarcerat ion on five counts of rape and ' one count of terroristic th reals. De fondant received credit for time served from November l 9, 7.012 to April 17, 201 Sand was deemed ineligible for RRRl. On February 2, 2016, the Superior Court affirmed Defendant's sentence. Defendant timely filed a PCRA on January 27, 2017 alleging trial counsel was ineffective based upon the following allegations: 1. Trial counsel failed lo file a suppression motion seeking to suppress statements Defendant made while being interviewed by Detective Sean Dowds when Defendant requested counsel and Detective Dowds continued to interview him. 2. Trial counsel failed to object and move for a mistrial based upon references made to Defendant's failure Lo speak with poi ice during the investigation 1. Trial counsel failed to object to expert testimony offered by lay witnesses, including testimony offered by SAFE nurse Martin Jackson and testimony offered by Detective Sean Dowds. ' All remaining charges merged with rape. 4. Trial counsel failed to object to a jury charge regarding flight of the Defendant. 5. Trial counsel failed to object lo Detective Sean Dowel's testimony regarding a meeting between himsel rand the victim in Ash Park, allegedly memorialized in a police report never turned over to Defendant. 6. Trial counsel failed to conduct a proper investigation, including trial counsel's failure to secure video surveillance from the Kool Bar and obtain all cell phone records to refute the victim's claim that her cell phone was dead and she received no cal Is. The law presumes that counsel has rendered effective assistance. Commonwealth }.'.�_,Lane, 8 I A.3J, .'i27 (Pa.Super 2004'1. 1 · Cnnunnn."°"."1- A: Yes. Q: Did you observe any injuries to her pelvic or rectal area? A: There was-let me double check. There was some redness lo the cervix and I saw a white substance there. Q: On the body map of the genital area, do you note on there any injury or do you note anything indicating an absence of injury? A: On the body map, yes. And on the genital injury documentation l did not put any injuries down. Q: In Iact, you staled no obvious injury? A: Correct. Q: But your recollection now on the checklist is you do mention there was some redness to the cervix or does your checklist just mention the white substance? A: The white substance. Q: What, if anything, does the lack of obvious injury to the genital area tell you about whether or not a sexual assault occurred? A. It docs not say one way or the other. Q: Can you explain that ro the jury. A: Lot of times there will be no injury to the genital area, because, unlike, I guess, I don't want to say typical, but the idea that there is a }01 of brui sing just doesn't happen A lot of ti mes the patient will have been threatened with further bodily harm, so they will. to avoid further injury, they will not resist. not put up a fight. And there have been studies that where, between nonconsensual and consensual sex, usually the nonconsensual sex won't have injuries in 80 to 90 percent of the cases. Q: Now, you mentioned in many cases the victim will be threatened and will not-I forget your exact words. Did Ms. Hines 17 indicate in her conversation with you whether or not she had been threatened at all? A: She was. She told me that he threatened to kill her with a box cutter if she did not comply. (N.T. 10/9/2013, 21-24). Defendant-has failed to prove that but for counsel's failure to object lo this line of questioning, the outcome would have been cti fferent. l f coun sd had objected to Mr. Jackson's testimony, the Commonwealth would have qualified Mr. Jackson as an expert. Mr. Jackson testi ficd that he has been a registered nurse for 28 years and has worked at Lancaster General !! Hospital as a registered nurse in the emergency room for the past 8 years. (N.T. 10/9/2013, 4-5). I Mr. Jackson's duties include trauma nursing and being a SA�E nurse. (N.T. 10/9/2013, 5). Mr. J Jackson recci ved 60 hours of adult and pediatric training in order to become a SAFE nurse. I I I (N.T t 0/9/2013, 6). Mr. Jackson testified that he has been a SAFE nurse for the past 2 years and has conducted ! 5 sexual assault forensic exams on adults. (N.T. 10/9/:?013, 7-8). Once qualified as an expert, Mr. Jackson would be permitted to give this testimony. See, Commonwealth v. Mincx.ct. 562 Pa. 46, 753 0.2d 225 (2000) (Commonwealth may offer. as part of its case-in-chief I Ill a sexual assault prosecution, an expert's testimony that absence of physical trauma is I 11 consistent with alleged sexual abuse). Defendant further argues that trial counsel was ineffective for failing to object I when Detective Dowds testified that cell phone records would not show whether a cell phone I was operating or dead. Defendant contends that Detective Dowds was testifying as a lay witness . I and did not have lhe specified skill, training or expertise to testify regarding cell phone usage and cell phone records. Defendant argues that trial counsel's failure to object prejudiced him. 18 Defendant informed Detective Dowds during his interview that the victim's cell phone was ringing while they were together. (Exhibit C-96A, p.5; 7; I 6). The victim testified that she realized her cell phone was dead when she went to look at it while she and Defendant wae outside of the Kool Bar smoking marijuana. (N.T. l 0/9/20 l 3, 69- 70). Defendant argues that trial counsel should have objected when Detective Dowds testified as follows on re-direct exam: Q: Detective, you were asked questions as to whether or not you received--attcmpted to obtain phone records, correct? A: Correct. Q: \Vould a phone record of any kind be able to confirm or corroborate one way or the other whether a cell phone was dead at any gi ven Ii me? A: No, it would not. JvfS. CARDAMONE: r have nothing further. THE COURT: Thank you. Any follow-up? ---Rf CROSS EXAtvfrN.t\ Tl ON--- BY Jv1S. KEMPS: Q: Phone records will tell you, however, if a phone call was made and whether they were received and how long the calls were made, correct? J\: Correct. (C-.:T l0/9/20!3. 106-07) i Defendant fails to provide evidence thot Detective Dowds testimony was i I prejudicial. Defendant failed to provide evidence that the cell phone had power and was working I during the assault. Defendant makes only the bald assertion that the victim's cell phone was working during the assault. Defendant cannot be prejudiced by Detective Dowds' testimony \9 unless he can provide. evidence that the victim's cell phone was working and Detective Dowels' testimony was false. Even if Defendant provided this evidence, whether or not the victim's cell phone was working during the assault does not disprove the fact that the victim was raped. Even if Defendant could prove that the victim's cell phone had power during the assault, there is no evidence of record that the victim could have reached her phone and called for help. The jury heard Defendant's statement that he heard the victim's cellphone ringing while they were together and the victim's testimony that her cell phone was dead. The victim testified that when Defendant started choking her, she remembered she had a can of mace in her purse, but her purse was so big and out of her reach, she would not be able to gel to it and remove the mace. (N .T. I 0/9/2013, I 06- l 07). The jury further heard the victim's testimony that she was afraid that Defendant would kill her if she screamed for help. (N.T. I 0/9/2013, 91 ). If the victim was so afraid that she could not scream for help, it is unbelievable that she could reach for her cell phone and call for help. Issues regarding a witness's credibility are left to the fact finder, who is free to believe all, part or none of the witness's testimony. Commonwealth_v. _pjre_@, 398 Pa.Super. 76, 82, 580 A.2d 848, 852 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991). TV Ftid1t_Instruction: Defendant alleges that trial counsel was ineffective for failing to object to a flight instruction being given to the jury. Defendant argues that he did not flee the jurisdiction. Defendant contends that he spoke with Detective Dowds over the phone and Detective Dowds ! knew his phone number as well as his address. Therefore. Defendant concludes that there was no I evidence of record that would support a flight instruction. '.'.O "[Wlherc evidence exists that a defendant committed a crime, knew he was wanted , and fled or concealed himself, such evidence is admissible to establish consciousness of guilt." k.9.n1monwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa.Super. 2005), citing, Commonwealth v. Johnson. 576 Pa. 23, 838 A.2d 663, 681 (2003). In determining whether a· jury charge was properly given, the court examines the charge as a whole. Lu�2YY�.9h, at l l 7·1. The trial court is given broad discretion in fashioning jury instructions, as long as the law is presented i 11 11 clear. adequate and accurate manner. [t_t. /\ t bar, there is evidence of record that Defendant knew that the victim was accusing him of committing a crime and as soon M, he heard that, he left Coatesville. Defendant told Dctecti ve Dowds during bis interview on November 19, 20 I 2 that the day after he bad consensual sexual contact with the victim, he and his friend returned to the Kool Bar, where Defendant overheard another individual slate that his sister had been raped the night before in the park. (Exhibit C-96A, at 5-6). Defendant also told Detective. Dowds that a week after the incident occurred he overheard a phone conversation between his girlfriend, Ashley Harris, and a I male wherein the male caller informed his girlfriend that Defendant had raped his sister in the I park. (Exhibit C-96A, at 10-11; N.T. 10/9/20! 3 at I 04). Detective Dowds further testified that Ashley Harris informed him the Defendant was living with her in Coatesville until he heard about the rape al legation. (N.T. l 0/9/203, 104: Exhibit C-95, p. l ·i of l 5). When Detective Dowels spoke with Defendant on September I 0, 1012, Defendant told him that Ashley Harris told him there was a warrant out Jen his arrest. (N.T J 0/9/2013, J 06; Exhibit C-95, p 12 of 15). Defendant did not come lO Coatesville and speak with Detective Dowds until he was arrested 2 months later. (N .T. I 0/9/2013, I 06). 21 Based upon this evidence, the following instruction was given to the jury: There was evidence in this case that tended to show that the defendant moved out of Coatesville shortly after he became aware of the victim's complaint to the police. The credibility, weight, and effect of this evidence is solely for you to decide. Generally speaking, when a crime has been committed and the person thinks he is or may be accused of committing it and he flees or conceals himself, such flight or concealment is a circumstance tending to prove the person is conscious of guilt. Such flight or concealment does not necessarily show consciousness of guilt in every case. A person may flee or hide for some other motive and may do so even though innocent. Whether the evidence of flight or concealment in the case should be looked al as lending to prove guilt depends on the facts and circumstances of this case and especially on motives that may have prompted the flight or concealment. You may not find the defendant guilty solely on the basis o I' evidence of flight or concealment. (N.T. I 0/9/20 l 3, 160-61 ). The instant instruction advised the jury they could consider evidence of consciousness of guilt but that it was not required to do so. The instruction further advised that the jury could not find Defendant guilty based solely on the basis (if flight or concealment. The instruction was clear, adequate and legally accurate. The charge was based upon the fact that Defendant fled the jurisdiction as soon as he heard the allegations of rape. As of September l 0, 20 l 2. Defendant knew there was a warrant out for his arrest, but did not return to Coatesville until November, despite telling Detective Dowds he would return in October. Therefore. the Court's instruction was proper and any objection by the Defendant would have been meritless. V. V,iolation of Mandatory Discoverv: Defendant' argues that trial counsel was ineffective for failing to request a mistrial when Dclecti ve Dowds testified about a police report that was never disclosed lo Defendant. Specifically. Detective Dowds testified that he met with the victim while they walked through Ash Park, the location of the assault, and the information he received during that meeting was placed into a police report that was not disclosed to Defendant. Defendant contends that this report was "presumably exculpatory because it provided additional information about the cornplainants version of the incident, the location as well as the crime scene." (Defendant's Initial Memorandum of Law in Support of Petition for Post-Conviction Collateral Relief, p. 19). Defendant argues that a failure to provide this report is a violation under Brady Y, _Marylrmd, 373 U.S. 83 (1963). In order for Defendant lo be successful on his claims under the PCRA, be must plead and prove by a preponderance of evidence that the conviction or sentence resulted Irorn one or more of the seven enumerated error listed in 42 Pa.C.S.A. § 9543(a)(2). Defendant's allegation of a I�ra_d.)'. violation falls within the following errors: (i) A violation of the Constitution of this Commonwealth or the constitution or laws of the United States 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. (ii) 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. :12 Pa.C.S.A. § 954J(a)(2)(i, ii). Pa.R.Crim.P. 573(B)( 1) provides in pertinent part that the Commonwealth shall disclose to the defendant all of the following requested items or information, provided they arc material to the instant case: (a) Any evidence favorable to the accused that is material either to guilt or to punishment and is within the possession or control of the attorney for the Commonwealth; ( b) any written confession or incu lpatory statement, and the identity of the person lo whom the confession or inculpatory statement was made that is in the possession or control of the attorney for the Commonwealth; (c) the defendant's prior criminal record; (d) the circumstances and result of any identification of the defendant by voice, photograph, or in-person identification; ( e) any result or reports of sci ell Ii fie tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control or the attorney for the Commonwealth; (1) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and (g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recording were obtained. To establish a Bradv violation, the following three elements must be proven: Ii ( l) the evidence at issue was favorable to the accused, either I because it is exculpatory or because it impeaches; (2) the evidence was suppressed by the prosecution, either wil lfully or inadvertently; and (3) prejudice ensued. [om.!_1)_9nwealth v. Rgnev, 622 Pa. J, 22, 79 A.3d 595, 607 (2013), citing, Commonwealth v, Ilutchinsoq, 61 l Pa. 2SO, 25 a.Jd 277, 310(201 l). The evidence at issue must have been "material evidence that deprived the defendant of a fair trial." Id. (citation and emphasis omitted). :'Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, bad the evidence been disclosed to the defense, the result of the proceeding would have been different. .,\ reasonable probability is a probability sufficient to undermine confidence in the outcome." Commonwealth y,J?