Com. v. Vega, J.

J-S12041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

JOHN ANTHONY VEGA

Appellant : No. 1692 EDA 2020

Appeal from the PCRA Order Entered September 2, 2020

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

No(s): CP-13-CR-0000395-2009

BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: Filed: May 20, 2021

John Anthony Vega (“Vega”) appeals from the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

This Court previously set forth the factual history underlying this appeal

as follows:

Evidence at trial established that on two separate dates an

intruder broke into [the victim’s] home during the early morning

hours and sexually assaulted her. At the time of these assaults,

[the victim] was a seventy-seven[-]year-old widow. The assaults

occurred on October 21, 2007 (“2007 assault”)[,] and May 31,

2008 ("2008 assault”).

On October 21, 2007, [the victim] was in the living room of

her home in Palmerton, Carbon County, Pennsylvanial[, |] watching

television. At around one o’clock in the morning, she left the living

room to use the bathroom. During this time, a masked intruder

entered the home and followed her into the bathroom. [The

victim] testified that the intruder was wearing all black and a mask

from the movie Scream. Further, [the victim] testified that the

intruder was around five[-|foot[,] seven [inches tall,] and spoke

J-S12041-21

with a slight Spanish or Puerto Rican accent. Testimony at trial

showed that this description matched [Vega].

Inside the bathroom, the intruder told [the victim] “he came

to rape her.” The intruder then approached [the victim] and a

struggle began causing both the intruder and [the victim] to fall

to the floor. Once on the floor, [the victim] continued to resist.

This notwithstanding, the intruder fondled [the victim’s] vagina.

As the struggle continued, [the victim] told the intruder that if he

raped her, she could die because she was suffering from

Parkinson’s disease, high blood pressure, and high cholesterol.

After hearing this, the intruder ended the attack and left. Before

he left, he said, “I'll be back.”

Once the intruder left, [the victim] noticed that her phone

wires were disconnected and that her underwear had been taken

from a laundry basket and hung on various objects throughout the

home. The Pennsylvania State Police were called to investigate.

Unfortunately, no evidence was found that identified the intruder.

The police did find a makeshift mask made from a pair of [the

victim’s] shorts at the scene, but this was not the mask described

by [the victim], and testing did not yield any results.

Seven months later[,] an intruder again entered [the

victim’s] home. This occurred during the early morning hours of

May 31, 2008, while [the victim] was watching television. As she

was going to the kitchen, she was attacked in the hallway. At

trial, [the victim] identified her assailant as the same person from

the 2007 assault. This time, however, the intruder was wearing

all black and a ski mask. [The victim] testified that the intruder

said, “I’m back. I’m here to finish what I came for before, the first

time.” The intruder then grabbed [the victim] and forced her to

the ground. While on the ground, the two wrestled. The intruder

fondled [the victim’s] vagina, and he removed her underwear.

Fortunately, [the victim] was not living alone when this

second assault occurred. In the seven months since the first

assault, [the victim] rented a room in her home to [a roommate].

[The victim’s] screams for help during the attack awoke [her

roommate]. [The roommate] ran out of her room into the

hallway. As she did so, the intruder ended the attack and ran out

of [the victim’s] home.

J-S12041-21

The Pennsylvania State Police were called a second time to

investigate. This time, police discovered two pieces of evidence

that identified the intruder as [Vega]. First, police lifted a palm

print from a windowsill on the outside of [the victim’s] home.

Police found a step stool beneath the window and determined the

intruder entered the home at this location. Two experts for the

Commonwealth testified that the palm print found matched

[Vega’s]. While the experts could not determine the exact time

[Vega] left this print, one of the experts, [Pennsylvania State]

Trooper Phillip Barletto, testified that outdoor elements easily

destroy finger and palm prints, implying the print was fresh.

Further, no evidence was presented to provide an innocent

explanation why [Vega’s] palm print would be on the outside of

[the victim’s] windowsill when neither she nor [the roommate]

knew [Vega] or gave him permission to be at the home.

Second, on the interior windowsill of the same window from

which the police lifted the palm print, police found an unopened

box of condoms. The condoms were manufactured by Associated

Wholesalers, Incorporated. Police contacted Associated, who

advised they distributed condoms of the type found in a

Convenient Food Mart in Palmerton. Sales receipts from this store

were obtained[,] which showed that a box of condoms was

purchased at 11:14 [p].[m]. on the night of the 2008 assault.

Next, police obtained surveillance video from the Convenient Food

Mart for the time of this purchase. The video depicted a customer

who strongly resembled [Vega] and was wearing a shirt with the

words “encendido” printed across the front[,] buying condoms of

the same type as those found in the victim’s home. Later, police

found a shirt matching that in the video in a search of [Vega’s]

home.

Based on this evidence, on March 27, 2009, the

Commonwealth filed a Criminal Complaint against [Vega] for both

the 2007 and 2008 assaults. In this [C]omplaint, [Vega] was

charged for each date with one count of attempted rape by forcible

compulsion, burglary, criminal trespass, and indecent assault. He

was also charged with one count of simple assault related to the

2008 assault. A jury trial began on January 7, 2013[,] and ended

on January 9, 2013. At its conclusion, the jury found [Vega] guilty

of all charges.

J-S12041-21

.. [Vega] was ... sentenced to an aggregate [term] of

thirteen to thirty-one years’ incarceration in a state correctional

facility. [Vega] was then thirty years old. The sentence was made

consecutive to sentences [Vega] was then serving in Northampton

and Lehigh counties for similar offenses. At the time of

sentencing, [Vega] was also serving a forty-six-month sentence

in a federal penitentiary.

On May 10, 2013, [Vega] filed a timely post-sentence

[M]otion[,] which was denied by [O|rder dated September 3,

2013.

Commonwealth v. Vega, 104 A.3d 49 (Pa. Super. 2014) (unpublished

memorandum at 1-3) (brackets omitted). This Court affirmed Vega’s

judgment of sentence, and our Supreme Court denied Vega’s Petition for

allowance of appeal. See id., appeal denied, 102 A.3d 985 (Pa. 2014).

On October 22, 2015, Vega filed the instant, pro se, PCRA Petition, his

first. The PCRA court appointed Vega counsel, who filed a Petition to Withdraw

and a “no-merit” letter pursuant to Turner/Finley.! Vega subsequently filed

a Motion to proceed pro se. The PCRA court granted counsel’s Petition to

Withdraw and appointed new counsel for Vega.2 On September 6, 2016,

Vega’s new counsel filed an Amended PCRA Petition. Following a hearing, the

PCRA court dismissed the Amended PCRA Petition. Vega filed a timely Notice

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 The PCRA court did not explicitly deny Vega’s Motion to proceed pro se.

However, in its Order appointing Vega’s new counsel, the PCRA court noted

that Vega’s request to proceed as his own counsel “is a matter which should

be discussed” with his new counsel. Order, 7/11/2016.

-4-

J-S12041-21

of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

Vega now presents the following question for our review:

Whether the [PCRA] [c]lourt erred in its finding that the

failure to call [] Vega’s girlfriend, Melissa Ballas [(“Ballas”)], as an

alibi witness did not deny effective assistance of counsel where

the failure to call such an important exculpatory witness was

clearly prejudicial and it was simply not reasonable strategy not

to present in an otherwise weak case for the Commonwealth?

Whether this alibi would have created a reasonable doubt as to []

Vega’s presence at the scene of the crime?

Brief for Appellant at 5.

“The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017). “The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record.” Id. (citation omitted).

Vega argues that his trial counsel was ineffective in failing to present

Ballas as an alibi witness at his trial. Brief for Appellant at 10-13. Vega points

to Ballas’s testimony at the PCRA hearing in support of his claim. Id. at 7,

11-13. Specifically, regarding the October 2007 assault, Ballas testified that

at the time of the October 2007 assault, Vega was with her at her apartment

in Emmaus, Pennsylvania. Id. Ballas stated that Emmaus is a thirty-five to

forty-five minute drive from the victim’s home. Id, at 7, 11. Regarding the

May 2008 assault, Ballas testified that she spoke with Vega on the phone at

1:10 a.m. on the morning of the May 2008 assault. Id. Vega also points out

-5-

J-S12041-21

that, according to his phone records, his cell phone signal connected with a

cell tower in Whitehall, which is approximately a fifteen to twenty-five minute

drive from the victim’s home. TId. at 7-8, 11. According to Vega, this

testimony proves that he could not have committed the assaults; trial

counsel’s decision to not present this testimony lacked a reasonable basis;

and Vega was prejudiced as a result. Id. at 11-13.

To prevail on a claim of ineffective assistance of counsel under the PCRA,

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

counsel’s ineffectiveness “so undermined the truth-determining process that

no reliable adjudication of guilt or innocence could have taken place.” 42

Pa.C.S.A. § 9543(a)(2)(ii). Specifically,

[t]lo be entitled to relief on an ineffectiveness claim, a PCRA

petitioner must establish: (1) the underlying claim has arguable

merit; (2) no reasonable basis existed for counsel’s action or

failure to act; and (3) he suffered prejudice as a result of counsel’s

error, with prejudice measured by whether there is a reasonable

probability the result of the proceeding would have been different.

Commonwealth v. Chmiel, ... 30 A.3d 1111, 1127 (Pa. 2011)

(employing ineffective assistance of counsel test from

Commonweatth v. Pierce, ...527 A.2d 973, 975-76 (Pa. 1987)).

Counsel is presumed to have rendered effective assistance.

Additionally, counsel cannot be deemed ineffective for failing to

raise a meritless claim. Finally, because a PCRA petitioner must

establish all the Pierce prongs to be entitled to relief, we are not

required to analyze the elements of an ineffectiveness claim in any

specific order; thus, if a claim fails under any required element,

we may dismiss the claim on that basis.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote and

some citations omitted).

J-S12041-21

Relating to the reasonable basis prong, generally, 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. Courts should not deem counsel’s

strategy or tactic unreasonable unless it can be concluded that an

alternative not chosen offered a potential for success substantially

greater than the course actually pursued.

Commonwealth v. Durrett King, 195 A.3d 255, 259 (Pa. Super. 2018)

(quotation marks, brackets and citations omitted).

In its Opinion, the PCRA court cogently and thoroughly addressed Vega’s

claim, and concluded that it lacks merit. See PCRA Court Opinion, 9/1/20, at

4-8, 10-21. Specifically, the PCRA court determined that Vega’s underlying

claim lacks arguable merit and trial counsel had a reasonable basis for not

calling Ballas as a witness. Id. The PCRA court further concluded that even

if Vega’s claim had merit, he did not suffer prejudice as a result of Ballas not

being called as a witness. Id. We agree with the sound reasoning and

determinations of the PCRA court, as set forth in its Opinion, and we affirm

thereon regarding Vega’s claim. See id.

Order affirmed.

J-S12041-21

Judgment Entered.

Joseph D. Seletyn, Es¢

Prothonotary

Date: 5/20/21

Circulated 04/29/2021 11:27 AM

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA :

vs. : NO. 395CR 2009

JOHN ANTHONY VEGA,

Defendant

Cynthia Dyrda-Hatton, Esquire Counsel for Commonwealth

District Attorney

John J. McMahon, Esquire Counsel for Defendant

MEMORANDUM OPINION

Nanovic, P.J. — September 1, 2020

Defendant was convicted of sexually assaulting a seventy-seven-year-old widow

in her home twice within a period of seven months, each time after breaking into the

home. On direct appeal, the Pennsylvania Superior Court affirmed Defendant's

judgement of sentence on May 15, 2014; the Pennsylvania Supreme Court denied

Defendant's allowance of appeal on October 23, 2014. Before us is Defendant's claim

that his trial counsel was ineffective for failing to call Defendant's girlfriend as a potential

alibi witness to the first assault and to use records of cell phone calls Defendant made

at the time of the second assault to pinpoint Defendant's location and thereby

demonstrate the resulting unlikelihood or improbability of Defendant committing the

second assault. For the reasons which follow, we deny Defendant's Petition for Relief

under the Post-Conviction Relief Act (‘PCRA"), 42 Pa.C.S.A. §§ 9541-9546.

PROCEDURAL AND FACTUAL BACKGROUND

On October 21, 2007, at approximately 1:00 A.M., June Fields was in her home

at 3885 Fireline Road in Palmerton preparing to retire for the night. Fields was

seventy-seven years old and lived alone. As she was in the bathroom, Defendant

APPENDIX “A’

4

suddenly appeared, threatened to rape her, and began to digitally penetrate her.

Fields begged for her life and told Defendant she was ill, and that if he did what he

threatened to do, it would kill her. Defendant stopped and fled Fields’ home

threatening to return. (N.T., 1/8/13, p.104).

The October 21, 2007, assault was promptly reported to the state police,

however, there were no leads and the police were unable to determine who assaulted

Fields. At the time of the assault, Defendant was dressed entirely in black and wore a

mask of the type used in the movie Scream. Fields did not recognize Defendant or

know who he was. Other than being able to describe his clothing and the mask worn,

the only other information Fields was able to provide was that her assailant was

approximately 5’7” in height and spoke with a slight Spanish or Puerto Rican accent.

Defendant returned to Fields’ home on May 31, 2008, sometime between

midnight and 1:00 A.M. (N.T., 1/8/13, pp.106, 137, 154, 176, 205-206, 209: N.T., 1/9/13,

p.308; N.T., 8/29/18, pp.81, 84, 126). This time, Defendant attacked Fields in the

hallway of her home saying, "I'm back. I'm here to finish what | came for before, the

first time.” (N.T., 1/8/13, p.106). Defendant grabbed Fields and forced her to the floor

where he pulled down her underwear and touched her vagina. ‘As Fields screamed for

help and fought back, a third person now boarding in Fields’ home was awoken and

entered the hallway where Fields was being attacked. At this point, Defendant ended

his attack and ran out of the home.

During the May 31, 2008, attack, Defendant again wore only black, but this time

was wearing a ski mask. Fields identified the person who attacked her on May 31,

2008, as the same person who had broken into her home on October 21, 2007. (N.T.,

APPENDIX "A"

2

1/8/13, p.107). This time, however, the state police were able to determine the

identity of the assailant.

Defendant's palm print was found on the outside of a window used by the

attacker to gain access to Fields’ home and where a Stepstool had been placed.

Further, an unopened box of condoms left by the intruder was found by the inside of this

same window. Based upon the brand and type of condom, the police were able to

trace the purchase of condoms of the same brand and type to a Convenient Food Mart

in Palmerton at 11:14 P.M. on the night of the 2008 assault. A surveillance video of

this convenience store recorded the purchase. The customer strongly resembled

Defendant and was wearing a shirt with the word ENCEND/DO' printed across the

front. A search of Defendant’s home found a shirt of the same type. (N.T., 1/9/13,

pp.251-52).

On January 9, 2013, after a three-day trial beginning on January 7 and ending on

January 9, 2013, Defendant was convicted of two counts of Attempted Rape by Forcible

Compulsion, two counts of Burglary,? two counts of Criminal Trespass,* two counts of

Indecent Assault by Forcible Compulsion,® and one count of Simple Assault.6 As

noted earlier, the merits of Defendant’s direct appeal to the Superior Court were denied,

as was his request for allowance of appeal.

On October 22, 2015, Defendant filed a pro se Petition for Collateral Relief, his

first. Therein, Defendant claimed, infer alia, that his trial counsel was ineffective for

failing to adequately investigate Defendant’s claim of alibi and to present alibi

' In Spanish, ENCENDIDO means fiery or passionate. (N.T., 1/9/13, ‘p.264).

218 Pa.C.S.A. §§ 901, 3121 (a)(1).

3 48 Pa.C.S.A. § 3502.

4 18 Pa.C.S.A. § 3503(a}(1)(i).

5 18 Pa.C.S.A. § 3126(a)(2).

8 18 Pa.C.S.A. § 2701(a)(1).

APPENDIX “A”

3

witnesses, including Melissa Ballas, who were available to the defense and willing to

testify at trial. Defendant specifically claimed that Ballas was with him on October 21,

2007, at 1:00 A.M. and that phone records showed she was on the phone with him at

1:10 A.M. on May 31, 2008. Attached to Defendant’s PCRA Petition was the following

signed and notarized statement of Ballas dated October 15, 2015:

| informed the Pennsylvania State Police and all of John Vega’s attorneys,

including trial counsel Kent Watkins, that on both mornings of the incidents

in question that John was either with me or on the phone with me. |! told

them that on October 21, 2007, John and | shared an apartment and | was

always with him, it would be extremely unlikely that he wouldn't have been

there that night. | also told them on the night/early morning of May 31,

2008, | definitely remember speaking with John late/night early morning.

His phone records later show that | did, in fact, speak with John at 1:11

a.m.

(N.T., 8/29/18, p.53; Commonwealth Exhibit No.1.). Ballas admitted preparing this

document on or about October 15, 2015, at Defendant’s request for use with his

Petition. (N.T., 8/29/18, pp.51-52, 74).

Other than Ballas, Defendant has identified no other alibi witness who he claims

were available and willing to testify at trial and whom trial counsel was made aware of.

PCRA counsel was originally appointed for Defendant and filed a no-merit letter.

Defendant’s present counsel has been privately retained.

A hearing on Defendant's Petition was held on August 29, 2018. At this hearing,

Ballas was the sole witness called by Defendant. Ballas testified that she first met

Defendant at a party at Defendant's cousin's home on October 20, 2004, that they

began a romantic relationship shortly thereafter, and that they were living together in an

apartment in Emmaus, Pennsyivania at the time of both the October 21, 2007, and May

31, 2008, incidents. (N.T., 8/29/18, pp.12-14, 26). Ballas also testified that October

20, 2007, was a Saturday, that she and Defendant spent the entire weekend together -

APPENDIX “A”

4

this being the third anniversary of their meeting - and that other than Defendant leaving

for approximately fifteen minutes late Saturday to purchase some cigarettes, they were

together the entire time. (N.T., 8/29/18, pp.11, 15-17). This apartment, Ballas

testified, was a thirty-five to forty-minute drive from Fields’ home. (N.T., 8/29/18, p.17).

As to May 31, 2008, Ballas testified that she tried telephoning Defendant

unsuccessfully two times on May 31, 2008 — at 12:41 A.M. and 12:49 A.M. — before he

returned her call at 1:10 A.M. (N.T., 8/29/18, pp.32-33). Defendant’s cell phone

records, which were provided to the defense in response to discovery and which Ballas

referred to in her testimony, show a forty-nine-second phone call from Defendant to

Ballas at 1:10 A.M. with the cell phone signal connecting with a cell tower at 3880

Lehigh Street, Whitehall, Pennsylvania, a distance of approximately seventeen miles

from Fields’ home, with a driving time of approximately fifteen to twenty-five minutes.

(N.T., 8/29/18, pp.26-27, 30-33, 42-46, 125-26, 130; Defendant Exhibit No.1).

Accepting the premise that the cell tower used to transfer Defendant's cell phone signal

was the one closest to his location at the time of the call, Defendant argued it was

physically impossible for him to have been in Fields’ home at the time Fields stated (Le.,

approximately 1:00 A.M.) and to have also driven a distance of seventeen miles to

make this call.

Ballas testified she told Watkins several times what she knew about Defendant's

whereabouts at the time of each offense with which he was charged, about her review

of Defendant's cell phone records with Watkins, and that the cell phone records were

ones Watkins received in discovery from the Commonwealth. (N.T., 8/29/18, pp.20-23,

26, 29-30, 43, 69-70; Defendant Exhibit No.1 (cell phone records)).

APPENDIX “A”

5

Attorney Watkins, Defendant's trial counsel, testified at the PCRA hearing as a

witness on behalf of the Commonwealth. He was not present in the courtroom when

Ballas testified. Watkins admitted speaking with Ballas on several occasions — both in

person and on the phone - and discussing the phone call from Defendant to Ballas on

May 31, 2008, and using the cell phone tower through which the call was transmitted as

a means of determining Defendant's location, but had no fSééllection and appeared

doubtful of ever being told that Ballas was with Defendant in Emmaus on October 21,

2007. (N.T., 8/29/18, pp.79-82, 100-101, 104, 107-108, 111-115, 119-120, 122).

Watkins acknowledged that given the passage of time, he did not have an independent

recollection of every detail of what Ballas told him (N.T., 8/29/18, pp.91, 105), and

agreed that Ballas was ready, willing and able to testify on Defendant's behalf.”

When questioned about why he did not call Ballas at trial as an alibi witness for

the October 21, 2007, assault and to cast doubt on Defendant’s whereabouts for the

May 31, 2008, assault, Watkins testified it didn't fit his theory of the defense: to highlight

the generic description of the intruder given by Fields and how non-specific it was; to

force the Commonwealth to prove Defendant was in Fields’ home and not somewhere

else at the time of the assault; and to challenge the Commonwealth’s theory that

Defendant entered and exited Fields’ home through a window too small for a person of

his size, without leaving any fingerprints or clothing fibers. (N.T., 1/7/13, pp.22, 95-96:

N.T., 1/9/13, pp.306, 308-310; N.T., 8/29/18, pp.82-83, 90-92). Watkins had a plan to

discredit the palm print evidence and cast doubt on the significance of the pictures

taken by the security camera at the convenience store. (N.T., 1/7/13, pp.51-52, 90-91:

? The PCRA hearing was held more than five years after the date of trial. At the hearing, it was clear

that Watkins had not reviewed his file in preparation for the hearing. (N.T., 8/29/18, p.105). Nor did

Watkins bring his case file or any notes he may have taken to the hearing. (N.T., 8/29/18, p.101).

APPENDIX “A”

6

N.T., 1/8/13, p.232; N.T., 1/9/13, pp.307-308; N.T., 8/29/18, pp.22, 25, 44, 46-47,

93-94). He did not want to present any evidence that Defendant was out of his home

on May 31, 2008, at a time when he would have been capable of committing the

assault, and Ballas had him out at 1:10 A.M. and earlier given the two phone cails she

made preceding this return call. (N.T., 8/29/18, pp.82-83, 85, 90-92, 112-416, 119).

Watkins also testified he discussed with Defendant his concerns about calling Ballas as

a witness and use of Defendant's cell phone records, and that Defendant was in

agreement with his decision not to call Ballas. (N.T., 8/29/18, pp.94-95).

Notwithstanding Watkins’ general lack of recollection, there were a number of

additional items Watkins testified to of significance. First, approximately five months

before Defendant's trial in Carbon County, Defendant was tried and convicted by a jury

in Lehigh County of charges of the same nature, under similar circumstances: breaking

into an elderly woman's home late at night and sexually assaulting her. (N.T., 1/9/13,

p.282; N.T., 8/29/18, pp.55, 81). In preparation for trial, Watkins read the full transcript

of the Lehigh County trial at which the evidence tying Defendant to the attacks against

Fields was admitted. (N.T., 8/29/18, pp.79-80).8 From that, Watkins knew the May 31,

2008, telephone records offered little to the defense, that multiple entries in those

records indicated telephone calls made to and by Defendant for drug trafficking, that

Ballas positively identified Defendant as the person purchasing the condoms from the

Convenient Food Mart in Palmerton an hour or two before the May 31, 2008, assault,

and that Ballas, who testified as an alibi witness for Defendant in the Lehigh County

proceedings, was not believed by the jury. (N.T., 8/29/18, pp.34-35, 41-42, 44, 46, 56,

8 ACD of the entire trial proceedings held in Lehigh County was marked and admitted as an exhibit at the

PCRA hearing. (N.T., 8/29/18, pp.136-137; Commonwealth Exhibit No.2).

APPENDIX “A”

7

60-61, 68-70, 80, 90-94, 125, 127, 134-35). Watkins testified as well that

notwithstanding the location of the cell tower involved in transmitting Defendant's

telephone call to Ballas on May 31, 2008, this did not establish the location from which

the call was made since, among other things, if the load on the cell phone tower closest

to where the call was made was backed up, the signal would automatically transfer to

another cell tower to relay the message. (N.T., 8/29/18, pp.82, 85, 113).

| DISCUSSION

A criminal defendant's right to counsel under the Sixth Amendment to the United

States Constitution, with which Article |, Section 9 of the Pennsylvania Constitution is

coextensive, requires not merely the right to have counsel present at trial, but the right

to have the effective assistance of counsel in order to preserve the defendant's right to

due process and ensure a fair trial. Commonwealth v. Diaz, 226 A.3d 995, 1007-1008

(Pa. 2020). To obtain post-trial collateral relief, a PCRA petitioner must plead and

prove that trial counsel’s performance was deficient and that the deficiency prejudiced

the petitioner. Strickland _v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); see also Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa.

1987) (applying a three-factor analysis to the “performance and prejudice” standard

articulated in Strickland).

To plead and prove ineffective assistance of counsel a petitioner must

establish: (1) that the underlying issue has arguable merit; (2)

counsel's actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel's act or failure to act. Where the

petitioner fails to plead or meet any elements of the above-cited test,

his claim must fail.

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.

APPENDIX “A”

8

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.

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.

Commonwealth v. Stewart, 84 A.3d 701, 706-707 (Pa.Super. 2013) (en banc) (citations

and quotation marks omitted), appeal denied, 93 A.3d 463 (Pa. 2014); see also

Commonwealth v. Kimball, 724 A.2d 326, 330-32 (Pa. 1999).

Additionally, when reviewing a claim that counsel was ineffective for failing to call

a witness,

[a] failure to call a witness is not per se ineffective assistance of

counsel as such decision generally involves a matter of trial strategy.

To establish a claim that counsel was ineffective for failing to call a

witness, a defendant must establish that the witness existed and was

available, that counsel was informed of the witness’s existence, that

the witness was ready and willing to testify and that the absence of the

witness prejudiced the defendant to a point where the defendant was

denied a fair trial.

Commonweaith v. Moser, 921 A.2d 526, 531 (Pa.Super. 2007); Commonwealth v.

Selenski, 228 A.3d 8 (Pa.Super. 2020). Finally, in reviewing a claim that counsel was

ineffective, counsel is presumed to be effective with the burden resting upon the PCRA

petitioner to prove by a preponderance of the evidence that counsel's performance was

deficient and that such deficiency prejudiced him. Commonwealth v. Smith, 181 A.3d

1168, 1174-75 (Pa.Super. 2018), appeal denied, 193 A.3d 344 (Pa. 2018); see also

Commonwealth v. Colavita, 993 A.2d 874, 897 (Pa. 2010) (holding the Commonwealth

APPENDIX “A"

9

bears no burden of proof with respect to a claim of ineffectiveness of counsel under the

PCRA).

When considering the Strickland/Pierce criteria for evaluating whether counsel

was ineffective, not every factor needs to be considered since the failure to meet even

one is fatal to a finding that counsel was ineffective. Commonwealth v. Mason, 130 A.3d

601, 618 (Pa. 2015). This notwithstanding, we believe it appropriate in this case to

examine each prong of the Strickland/Pierce analysis.

Arguable Merit of Defendant’s Claim

Given the fact that there were only two witnesses to the October 21, 2007,

assault - Fields and the assailant — and the general description of the assailant given by

Fields, Defendant’s claim of an alibi for this date is of arguable merit. However,

counsel cannot be faulted for failing to present evidence of which he was unaware.

Basic to Defendant's claim that Watkins was ineffective for failing to call Ballas as

an alibi witness with respect fo the October 21, 2007, assault is that Watkins was told

Defendant was with Balias in Emmaus on October 21, 2007, at the time of the assault

and, therefore, could not have assaulted Fields. “An alibi is a defense that places the

defendant at the relevant time in a different place than the scene involved and so

removed therefrom as to render it impossible for him to be the guilty party.”

Commonwealth v. Johnson, 966 A.2d 523, 537 n.5 (Pa. 2009) (citation and quotation

marks omitted). We do not find Ballas credible on this point.

We note first that Watkins was apprised of Ballas’ existence and her relationship

with Defendant, that he met with her on at least one occasion and spoke with her by

telephone on several other occasions regarding the substance of her testimony - if not

every detail - and reviewed what she had testified to in Lehigh County, and knew as well

APPENDIX “A”

10

that she was ready and willing to testify and was, in fact, available as she attended the

trial. These discussions however dealt primarily with the May 31, 2008, assault, the

telephone call at 1:10 A.M. on that date, and where Defendant was located at the time

of the call. (N.T., 8/29/18, pp.81, 111).

When Watkins was questioned at the PCRA hearing about Ballas’ claim that

Defendant was with her on October 21, 2007, it was clear that Watkins did not recall

being told this and, by his demeanor, questioned whether he ever was. (N.T., 8/29/18,

pp.104, 107-108, 111, 119-20, 122). Trooper Judge, who participated in the

investigation of both the Carbon County and Lehigh County charges and was present at

every meeting with Ballas, testified unequivocally that Ballas never told him of this

claimed alibi which is clearly contrary to what Ballas wrote in her October 15, 2015,

statement. (N.T., 8/29/18, pp.63-64, 128). Furthermore, in this statement written by

Ballas almost eight years after the event, Ballas wrote, “I told them that on October 21,

2007, John and | shared an apartment and | was always with him, it would be extremely

unlikely that he wouldn't have been there that night.” Yet, by the time of the PCRA

hearing, another three years later, Ballas testified without equivocation that she knew

for a fact Defendant was with her because it was their anniversary, and even recalled

how he went out late that evening to purchase a pack of cigarettes across the street.

Ballas had been in a romantic relationship with Defendant for almost nine years,

still cared for him, and, without doubt, embellished her testimony to help him. This was

further evident during the Lehigh County trial where Ballas not only sought to provide

Defendant with another alibi with respect to the Lehigh County charges, but was caught

in multiple inconsistencies when she attempted to do so. (N.T., 8/29/18, pp.91,

APPENDIX "A"

11

134-35). Simply put, we do not find Ballas’ alibi testimony regarding October 21,

2007, to be credible and do not believe Watkins was ever informed prior to trial about

this claimed alibi. |

Whether Defendant's claim of ineffectiveness for not calling Ballas as a witness

to the May 31, 2008, telephone call and using the location of the cell tower as a means

of determining Defendant's location at the time of the call is of arguable merit must also

be addressed. In contrast to a true alibi defense, Ballas was not with Defendant at the

time of the assault on May 31, 2008. At most, Ballas could testify that she received a

cell phone call from Defendant at 1:10 A.M. on May 31, which was approximately ten

minutes after the time of the assault as testified to by Fields. Although this evidence by

itself does not raise a true alibi defense or make it impossible for Defendant to have

assaulted Fields, Ballas testified at the PCRA hearing, without objection, that the cell

tower which received Defendant's cell phone signal and transmitted the call to her was

located at 3880 Lehigh Street in Whitehall, Lehigh County, Pennsylvania. (N.T., 8/29/18,

p.42).'° Even assuming that Ballas was competent to give this testimony, Ballas was

clearly not qualified to determine the location of Defendant's cell phone and, by

extension, the whereabouts of Defendant in relation to the cell tower. See

Commonwealth v. Nevels, 203 A.3d 229, 240 (Pa.Super. 2019) (describing the initial

six-week training program with yearly updates provided by cell phone companies to

members of the FBI's Cellular Analysis Survey Team (“CAST”) before being qualified to

provide expert testimony with respect to historical cell-site analysis described “as the

* During the Lehigh County trial, Ballas was not permitted to testify as an alibi witness for the October 21,

2007, events in Carbon County because of a failure to provide advance notice to the Commonwealth.

(N.T., 8/29/18, pp.67-68).

‘© Ballas appears to have used an instructional manual provided by Defendant's cell phone provider,

Sprint, to identify the location of the cell tower which picked up Defendant's cell phone signal. (N.T.,

8/29/18, pp.7, 42; Defendant Exhibit No.1b). How this was done was never explained by Ballas.

APPENDIX “A”

12

BrOCESs of analyzing records maintained by the cellular service companies to plot ona’

map what tower(s) and sector(s) a phone used to connect to the provider's network.

The data is used to determine a cell phone's general geographic location at the time the

phone was used to place a call or send a text message."), aff'd, 2020 WL 4758615 (Pa.

2020).

Knowing the location of the cell tower a phone uses to connect to a provider's

network is not alone sufficient to give the location of the phone at the time of the call.

As testified to by the Commonwealth’s expert in Nevels:

It's very important to know that despite what you may have seen in the

movies or on Netflix or whatever, you can't tell the location, the exact

location of where a phone was in time, historically. So | can’t tell you if the

phone was at the corner of Grant Street and you know, a particular street

at any given time. | can't say it was 123 Main Street at some point in time;

but | can say that it used a particular tower and sector.

Nevels, 203 A.3d at 240-41.

For instance, Ballas did not testify and was not qualified as an expert to testify as

to whether cell phones connect to the nearest provider’s specific cell tower; whether any

other Sprint cell tower existed between Fields’ home and the tower in Whitehall with

which Defendant’s phone would otherwise have connected had he been making the call

from some other location closer to Fields’ home; whether, as Watkins testified, if

another tower was busy, the signal would be transferred to a more distant tower, such

as the one in Whitehall; or what the signal strength and range or outer perimeter (i.e.,

the coverage area) was for the cell tower which picked up Defendant's signal. Without

this information, Ballas’ bald assertion that Defendant was a half-hour drive away from

Fields' home at the time this call was made and physically incapable of committing the

assault at 1:00 A.M. is speculative and unreliable. All of this was Defendant’s burden

to meet at the PCRA hearing, and it was not met. See also Commonwealth v. Chmiel,

APPENDIX "A"

13

889 A.2d 501, 546 (Pa. 2005) (Trial counsel's failure to call a particular witness does

not constitute ineffective assistance without some showing that the absent witnesses’

testimony would have been beneficial or helpful in establishing the asserted defense.”).

And while the argument can certainly be made that Watkins failed to conduct a

reasonable investigation regarding this same information, even if this is true, without

knowing the answers to these questions, on what basis can it be determined that

Defendant was prejudiced by Watkins’ failure to investigate."

Reasonable Basis of Trial Counsel’s Conduct

Whether counsel's course of action lacked an objective reasonable basis is the

second Strickland/Pierce factor. Watkins testified repeatedly that the decision not to

call Ballas as a witness was a tactical decision, that he wanted to keep Defendant as

distant as he could from Fields’ home without raising the possibility of Defendant being

close enough to have committed the assaults. While Ballas’ proffered testimony for

"| In Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009), the Pennsylvania Supreme Court stated:

Counsel has a general duty to undertake reasonable investigations or make reasonable

decisions that render particular investigations unnecessary. ... The duty to investigate,

of course, may include a duty to interview certain potential witnesses; and a prejudicial

failure to fulfill this duty, unless pursuant to a reasonable strategic decision, may lead to a

finding of ineffective assistance.

966 A.2d at 535-36 (emphasis added).

Watkins made a strategic decision not to present any evidence that Defendant was not at home at the

time Fields was assaulted on May 31, 2008. Through investigation, Watkins had also learned that the

call tower to which a cell phone signal is transmitted is not necessarily the tower closest to the location

from which the call is placed. Whether Watkins should have conducted further investigation on this point

can certainly be questioned, however, with what Watkins knew - including the uncertainty of the exact

time of the assault, sometime between 12:00 A.M. and 1:00 A.M., with this variance providing ample

opportunity for Defendant to have assaulted Fields and still been present at the celi tower at 1:10 A.M.

(N.T., 8/29/18, pp.126, 129) - and in light of his chosen strategy, the decision not to investigate further -

may well have been warranted. Nevertheless, even if Watkins’ failure to investigate the cell phone

records further were found to be unreasonable, Commonwealth v. Steele, 961 A.2d 786, 825 (Pa. 2008)

("reasonableness of a particular investigation depends upon evidence known to counsel, as well as

evidence that would cause a reasonable attorney to conduct a further investigation”), and not excused by

trial strategy, Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa. 2000) (“Strategic choices made

following less than complete investigation are reasonable precisely to the extent that reasonable

professional judgment supports the limitation of the investigation."), an unexcused failure to make a

reasonable investigation is not per se prejudicial or entitle a defendant to Strickland relief. Johnson, 966

A.2d at 536,

APPENDIX “A”

14

October 21, 2007, was entirely consistent with that objective and with counsel's trial

strategy, her testimony concerning May 31, 2008, put Defendant outside his home,

within striking distance of Fields, and overall would have strengthened the

Commonweaith’s case.

In evaluating whether-counsel’s actions lacked an objective reasonable basis,

critical to making this evaluation is the fact that Defendant was being tried at one time

for two separate assaults connected by their similarity to one another and what was

said: both involved a masked intruder dressed in black with an Hispanic accent breaking

into an elderly woman's home late at night to sexually assault her; both involved the

same home, the same victim and, as testified to by the victim, the same assailant: and

the assailant in the first assault stated, "I'll be back” and, in the second assault, “I’m

back.”

By itself, the case against Defendant for the first attack was weak: an unidentified

stranger entering Fields’ home dressed in black, wearing a Scream-like mask, with no

ties to Defendant. In contrast, the evidence linking Defendant to the second attack was

difficult to refute: a security video depicting a person resembling Defendant purchasing

condoms from a convenience store within a mile of the victim’s home, within an hour of

the assault (N.T., 1/8/13, p.199; N.T., 8/29/18, pp.62, 127); a palm print matching

Defendant's found on the outside of the victim’s window; and a box of condoms of the

same brand and type as those purchased at the convenience store found inside the

victim’s home after the assault. Nevertheless, possible room for doubt existed: the

store video was of poor quality and the clerk only saw the purchaser on one occasion,

late at night, for a brief moment; and not only is fingerprint analysis an inexact science

having, as it does, a subjective element subject to differences of opinion, at least one of

APPENDIX *A”

16

the lines from the latent palm print lifted from the exterior window sill of Fields’ window

did not appear to match the known palm print from Defendant. (N.T., 1/7/13, pp.51-52,

90-91; N.T., 1/8/13, p.232; N.T., 1/9/13, pp.307-308). If additional evidence also

showed Defendant was in fact in the area at the time of the assault, this could be

devastating to the defense. This was the dilemma trial counsel faced if he put Ballas

on the stand.

Absent what happened on May 31, 2008, the Commonwealth's case against

Defendant for October 21, 2007, was weak. The possibility that Defendant may have

been the intruder only became known because of the May 31, 2008, assault for which

the Commonwealth had strong, albeit not ironclad evidence connecting Defendant to

this offense. While Ballas’ testimony about May 31, 2008, could cast further doubt on

whether Defendant was at Fields’ home on that date, it came at a hefty price: Ballas

definitively identified Defendant as the person in the videotape’? and it placed

Defendant in the area of the assault, at the time of the assault, with time to commit the

assault. (N.T., 8/29/18, pp.126, 129). Moreover, it came with the realization that

Ballas knew multiple other calls on Defendant's cell phone records for May 31, 2008,

involved drug dealing — in fact, Ballas acknowledged being with Defendant in Palmerton

earlier in the day on May 30, 2008, when Defendant was selling drugs (N.T., 8/29/18,

pp.34-35, 41-42) - which, if made known to the jury, would be devastating. 1%

12 At trial, the Commonwealth called the sales clerk at the convenience store as part of its case-in-chief. .

At no time during her testimony did the sales clerk testify Defendant was the person who purchased the

condoms on May 31, 2008, or that Defendant was the person depicted in the videotape. The clerk's

testimony was presented primarily to authenticate the tape. (N.T., 1/8/13, pp.210-215).

13 Defendant did not testify at either his jury trial or the PCRA hearing. When colloquized at trial,

Defendant's criminal record contained a number of crimen faisi convictions with which Defendant might

be impeached. (N.T., 1/9/13, pp.282-84; N.T., 8/29/18, pp.82, 86-87, 90). Additionally, had Defendant

testified about his phone call to Ballas at 1:10 A.M. on May 31, 2008, he would likely have been subject to

cross-examination on the earlier two missed phone calls from Ballas and other phone calls made by him

that evening, with the risk that his drug dealing would be disclosed. (N.T., 8/29/18, pp.82, 89}. This risk

APPENDIX “A”

16

Additionally, and cértainly not controlling, Watkins knew that Ballas testified for

Defendant during the Lehigh County trial five months earlier, at which the allegations

and evidence linking the Defendant to the Carbon County assaults was placed in

evidence under Pa.R.E. 404(b)(2), and that Ballas’ testimony was of no benefit.

In examining whether a “reasonable basis” exists for trial counsel’s actions where

matters of strategy and trial eaetits are in issue, given the many intangibles involved,

review of trial counsel’s conduct is deferential. Commonwealth v. Rivers, 786 A.2d

923, 930 n.5 (Pa. 2001). “Trial counsel will be deemed to have acted reasonably if the

course chosen by trial counsel had some reasonable basis designed to effectuate his

client's interests.” Commonwealth v. Miller, 987 A.2d 638, 653 (Pa. 2009). “Moreover,

a Claim of ineffectiveness will not succeed by comparing, in hindsight, the trial strategy

that trial counsel actually employed with the alternatives forgone,” Miller, 987 A.2d at

653 - even if the alternatives forgone offered a more logical course of action — as long

as counsel's decisions had a reasonable basis. Mason, 130 A.3d at 618. This is not

to say the PCRA court “disregard[s] completely the reasonableness of other alternatives

available to counsel,” however, “the balance tips in favor of a finding of effective

assistance as soon as it is determined that trial counsel's decision had any reasonable

basis.” Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007) (citation and

quotation 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.” Mason,

130 A.3d at 618 (citation and quotation marks omitted).

was éliminated by Defendant's decision not to testify. Had Ballas testified, whether she would have been

cross-examined about her knowledge of Defendant's other calls would have depended on what she

APPENDIX “A”

17

The dilemma Watkins faced on whether to call Ballas as a witness was not an

easy one. Under the circumstances the choice made, to forgo Ballas' testimony, had a

reasonable basis and the alternative, to have Ballas testify, did not offer a significantly

greater potential chance for success. See also Commonwealth v. Charleston, 94 A.3d

1012, 1019 (Pa.Super. 2014), appeal denied, 104 A.3d 523 (Pa. 2014).

Prejudice

The third and final factor to be considered under the Strickland/Pierce standard is

prejudice: was Defendant prejudiced by counsel's deficient conduct. “In order to meet

the prejudice prong of the ineffectiveness standard, a defendant must show that there is

a reasonable probability that but for the act or omission in question the outcome of the

proceeding would have been different.” Commonwealth v. Wallace, 724 A.2d 916, 921

(Pa. 1999),'4 “When a defendant challenges a conviction, the question is whether

testified to on direct examination. (N.T., 8/29/18, p.4). While this risk might have been slight, the risk

nevertheless existed.

'4 Prejudice, as so defined, requires that the PCRA court consider the totality of the evidence presented

by the Commonwealth at the original trial and the evidence presented in defense, to which must be added

the evidence adduced at the PCRA hearing; re-weigh all such evidence: and determine whether the

absence at trial of the evidence presented at the PCRA hearing creates a reasonable probability that the

verdict would have been different. Commonwealth v. Johnson, 2020 WL 4211747 **4, 5 (Pa.Super.

2020) (en banc) (citing and quoting from Andrus v. Texas,__- U.S. __, 140 S.Ct. 1875, L.Ed.2d

(2020).

In making this evaluation, the PCRA court is required to assess the credibility of the witnesses

presented at the PCRA hearing. Commonwealth v. Johnson, 966 A.2d at 540.

In assessing credibility . . ., the question for the PCRA court is not whether the jury in fact

would have credited [Defendant's] new evidence and his recast alibi evidence. Instead,

the question is whether the nature and quality of the evidence is such that there is a

reasonable probability that the jury would have credited it and rendered a more favorable

verdict. That assessment must include a recognition of the impeachability of the

witnesses, and not merely a viewing of their testimony in a most favorable light.

fd, at 542.

As already discussed in the text, we found Ballas’ testimony that she told Watkins she was with

Defendant in Emmaus on October 21, 2007, at the time of the assault to be biased and not credible.

Further, while we have accepted Ballas’ testimony that she was on the phone with Defendant on May 31,

2008, at 1:10 A.M. for forty-nine seconds, we are not convinced that this testimony without additional

foundational testimony from an expert witness as to Defendant's location (or that of his cell phone) at the

time of the call, as well as the extrinsic dangers which accompanied it (i.e., Ballas’ positive identification

of Defendant on the security videotape, placing Defendant outside his home in close proximity to Fields,

and knowledge of Defendant's drug dealing), creates a reasonable probability that the outcome of the trial

would have been different.

APPENDIX “A”

18

there is a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. "A

reasonable probability does not mean that the defendant would more likely than not

have received a different verdict with the evidence; it means only that the likelihood of a

different result is great enough to undermine confidence in the outcome of the trial.”

Commonwealth v. Johnson, 174 A.3d 1050, 1056 (Pa. 2017) (citation and quotation

marks omitted). “Such a_ showing effectively demonstrates that counsel's

ineffectiveness ‘so undermined the truth determining process that no reliable

adjudication of guilt or innocence could have taken place,’ as required by Section

9543(a)(2)(ii) of the PCRA.” Wallace, 724 A.2d at 921.

In analyzing this factor, we repeat what we said earlier: Defendant has failed to

meet his burden of showing the cell phone call at 1:10 A.M. on May 31, 2008, was

made by Defendant from a location which precluded him from assaulting Fields

between 12:00 and 1:00 A.M. on May 31, 2008, the timeframe within which the

Commonwealth's evidence placed Defendant in Fields’ home. (N.T., 8/29/18, pp.126,

129); cf. Commonwealth v. Johnson, 966 A.2d at 538 (“At the core of an alibi defense

is, of course, consistency between the date and time of the crime and that of the

defendant's alibi.”). Without eliminating this possibility, Ballas’ testimony placing

‘Defendant within striking distance of Fields’ home at the time of the assault on May 31,

2008, would only have reinforced the strength of the Commonwealth's case against

Defendant for the May 31, 2008, assault and, in the process, also hurt Defendant's

chances of acquittal for the October 21, 2007, assault.

Ballas’ testimony had the potential of undermining the defense strategy at its

core. Added to this was Ballas’ definitive identification of Defendant in the surveillance

APPENDIX “A

19

video at the Convenient Food Mart and knowledge that Defendant was actively

engaged in dealing drugs in the Palmerton area on the night of the assault. Given

these risks and the strength of the Commonwealth's case as presented at trial,

Defendant has not met his burden of demonstrating that had Ballas been called to

testify and presented the testimony offered at the PCRA hearing, there is a reasonable

probability the jury’s verdict would have been different, that is, that the absence of

Ballas’ testimony denied Defendant a fair trial. Cf Johnson, 966 A.2d at 540 ("To

properly grant Strickland relief here, the PCRA court would have to find that the

uncalled fact witnesses and the deficiently prepared alibi witnesses had relevant

evidence that could have aided [Defendant's] defense, and that there is a reasonable

probability that the introduction of such evidence would have altered the outcome of the

trial. That assessment must necessarily include some — of a finding that the

witnesses were credible... .”).

CONCLUSION

“[T]he constitutional guarantee to effective assistance of counsel exists to ensure

a criminal defendant receives a fair trial.”. Commonwealth v. Diaz, 226 A.3d at

1008; Kimball, 724 A.2d at 330-32. While in hindsight perhaps a different strategy may

have been pursued by trial counsel, we are not convinced that the strategy actually

pursued did not have a reasonable basis in advancing Defendant's interests, As

discussed, there were risks involved whether or not Ballas was called to testify; the

record discloses a reasonable basis why trial counsel chose not to call Ballas; and we

are not convinced that had Ballas testified, there is a reasonable probability the

suteome of the trial would have changed, that without her testimony “no reliable

adjudication of guilt or innocence could have taken place.” 42 Pac.SA. §

APPENDIX “A”

20

9543(a)(2)(i-i). Defendant received a fair trial and that, ultimately, is what matters.

Diaz, 226 A.3d at 1008.

BY THE COURT:

QOL

Pal

APPENDIX "A”

21