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[U] Commonwealth v. Tyger

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JOSEPH DUANE TYGER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of December 4, 2012 In the Court of Common Pleas of Butler County Criminal Division at No.: CP-10-CR-0002077-2009

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]

MEMORANDUM

WECHT, J.

Joseph D. Tyger ("Appellant") appeals from the order entered on December 4, 2012 in the Court of Common Pleas of Butler County denying his petition filed pursuant to the Post-Conviction Relief Act (" PCRA"), 42 Pa.C.S. §§ 9541-46. Counsel for Appellant has filed with this Court an Anders[1] brief and a petition to withdraw as counsel. We grant counsel's petition to withdraw, and we affirm the PCRA court's order.

On June 25, 2009, Appellant began a dialogue in an Internet chat room, specific to Pennsylvania, with an online persona styled "prettyinpa13." I n fact, the person behind that profile was Special Agent David Frattare (hereinafter, "Agent Frattare") of the Pennsylvania Attorney General's Child Predator Unit. Agent Frattare went by the name "Brianna" when using the "prettyinpa13" profile.[2] Agent Frattare used the profile to patrol Pennsylvania chat rooms for predatory activities.

The initial chat between Appellant and "Brianna" discussed various form s of sexual intercourse. Despite " Brianna's" disclosure to Appellant that she was thirteen years old, Appellant continued the conversation. Appellant initiated a second chat with "Brianna" on June 26, 2009. This chat also was sexual in nature and contained another brief conversation regarding the respective ages of both parties. Appellant informed "Brianna" that he wished their conversations to remain secret because he did not want to go to jail. During the second conversation, Appellant arranged a meeting between the two parties at a Sheetz gas station. During that conversation, " Brianna" gave Appellant her phone number. A third conversation on June 28, 2009, confirm ed the details of the meeting.

On June 29, 2009, agents of the Child Predator Unit identified and arrested Appellant at the a for ementioned Sheetz gas station. Appellant signed a waiver of rights form, and consented to a search of his vehicle. Therein, agents found a bag of condoms and the phone number provided to Appellant by "Brianna."

Appellant was charged with unlawful contact with a minor relating to involuntary deviate sexual intercourse; [3] unlawful contact with a minor relating to sexual assault; [4] unlawful contact with a minor relating to indecent assault; [5] attempted unlawful conduct with a minor; [6] and criminal use of a communication facility.[7] On June 23, 2010, a jury found Appellant guilty on all counts. On October 21, 2010, Appellant was sentenced to fifty-four to 108 months' incarceration. Appellant also was subjected to lifetime registration under Megan's Law. 42 Pa.C.S. § 9795.1(b)(1).

Appellant filed a timely post-sentence motion challenging his lifetime registration status under Megan's Law. On January 28, 2011, the trial court dismissed Appellant's motion. Thereafter, Appellant filed a notice of appeal. On September 8, 2011, we rejected Appellant's challenge to his lifetime registration status under Megan's Law on the basis that the plain language of the statute and the controlling case law did not warrant relief. Commonwealth v. Tyger, 34 A.3d 219 (Pa. Super. 2011) (table). Appellant sought allowance of appeal from the Pennsylvania Supreme Court, which was denied on March 23, 2012. See Commonwealth v. Tyger, 40 A.3d 1236 (Pa. 2012) (per curiam).

On September 21, 2012, Appellant timely filed a PCRA petition through appointed counsel, raising various issues regarding the effectiveness of trial counsel. On November 8, 2012, the PCRA court held a hearing on Appellant's petition. On December 4, 2012, the PCRA court issued an opinion and order dismissing Appellant's PCRA petition. On December 31, 2012, Appellant filed a notice of appeal. I n response, the PCRA court directed Appellant to file a concise statement of errors com plained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 2, 2013, Appellant timely filed a Rule 1925(b) statement. On March 18, 2013, the PCRA court entered an opinion pursuant to Rule 1925(a), which referred back to the legal reasoning articulated in its December 4 order.

I n his Anders brief, PCRA counsel has identified three potential issues for our review:

1. Did the PCRA [ c] ourt commit an error of law when it determined that trial counsel was not ineffective for failing to object to the Commonwealth's Exhibit 26, which was the declaration and certification of th[ e photographs of the Florida police officer] . . . concerning the use of her photos for the undercover investigation, thus undermining the truth[ -] determining process [ such that] no reliable adjudication of guilt or innocence could have taken place?
2. Did the PCRA Court commit an error of law when it determined that trial counsel was not ineffective for failing to object to the testimony from [ Agent Frattare] concerning the age of [ the Florida police officer] in various photographs, and regarding the number of arrests made by the Office of the Attorney General using the [ "Brianna"] persona, and the testimony by Special Agent Kelly Roberts regarding the number of cases she has been involved with and the commendation she received for portraying the voice of [ "Brianna, "] thus undermining the truth[ -] determining process [ such that] no reliable adjudication of guilt or innocence could have taken place?
3. Did the PCRA Court commit an error [ of] law when it determined that trial counsel was not ineffective for failing to object and request a cautionary instruction or mistrial when the Commonwealth questioned on several occasions [ Appellant's] right to counsel, right to remain silent and made impermissible comments on Appellant's post[ -] arrest silence, thus undermining the truth[ -] determining process [ such that] no reliable adjudication of guilt or innocence could have taken place?[8]

Anders Brief at 4.

Collectively, these issues allege that trial counsel was ineffective based upon trial counsel's failures to object to the introduction of four specific pieces of testimonial and/ or documentary evidence, as well as trial counsel's failure to object to an allegedly improper statement made by the assistant district attorney. I d. at 4. Although listed as three claim s, there are actually five distinctive issues raised in Appellant's brief. Specifically, the second issue stated in Appellant's brief alleges three separate evidentiary bases for ineffectiveness. Therefore, in this memorandum, we ultimately will address five issues: the single issue raised in Appellant's first claim, the three issues raised in Appellant's second claim, and the single issue raised in Appellant's third claim .

As noted above, PCRA counsel has filed an Anders brief and a motion to withdraw as counsel. Because this is an appeal from a PCRA order, we will treat PCRA counsel's Anders brief as a Turner/ Finley brief. See supra note 1. We first consider whether PCRA counsel has complied with the requirements that our courts have established in order for appointed counsel to be released pursuant to Turner and Finley. We previously have explained this procedure as follows:

Counsel petitioning to withdraw from PCRA representation must proceed under [ Turner/ Finley and] . . . must review the case zealously. Turner/ Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no merit" letter/ brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/ Finley, the court - trial court or this Court - must then conduct its own review of the merits of the case. I f the court agrees with counsel that the claim s are without merit, the court will perm it counsel to withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citations omitted).

We conclude that PCRA counsel has substantially complied with the technical requirements of Turner/ Finley. I n his brief, PCRA counsel sets forth the issues as to which Appellant seeks our review on appeal. See Anders Brief at 4. It is clear that PCRA counsel has studied the history of Appellant's case thoroughly. I d. at 5-13. PCRA counsel also has reviewed the applicable statutes, case law, and rules of procedure. I d. at 15-19. In articulating his reasoning as to why he believes that Appellant is not entitled to relief, PCRA counsel reviews the legal standards for proving I AC claims. PCRA counsel argues that Appellant is unable to satisfy the elements of the above test with regard to Appellant's ineffectiveness claim s, to wit, that trial counsel was ineffective for not objecting to: (1) the admission of the verification of the photographs of the Florida police officer; (2) the admission of the photographs them selves; (3) the admission of testimony relating to the effectiveness of the Child Predator Unit; (4) the admission of testimony from Special Agent Kelly Roberts regarding her role as the "voice" of "Brianna"; and (5) allegedly improper statements made by the assistant district attorney. Specifically, PCRA counsel argues that Appellant's trial counsel had a reasonable, strategic purpose for not objecting to the admission of this evidence, or to the assistant district attorney's allegedly improper statements.

With respect to the first four issues, trial counsel testified that "[ Appellant] assisted in creating the defense strategy[, ] which was not to contest the Commonwealth[ 's] case[, but] instead was to focus on [ Appellant's] mens rea." Notes of Testimony of PCRA Hearing ("N.T. PCRA"), 11/ 8/ 2012, at 5-6; see Anders Brief at 16. Appellant's fifth issue implicates trial counsel's failure to demand a curative instruction or mistrial in response to statements made by the assistant district attorney "regarding [ Appellant's] post[ -] arrest silence and his duty to present evidence." Anders Brief at 20. Trial counsel stated that he " considered making an objection, but believed [ that an objection] would not lead to a mistrial and did not want to emphasize the issue." N.T. PCRA at 14-15, see Anders Brief at 20.

Based upon trial counsel's stated reasoning, PCRA counsel ultimately has concluded that Appellant is not eligible for PCRA relief. Accordingly, PCRA counsel has filed a motion to withdraw. Additionally, this Court has received a copy of the July 30, 2013 letter that counsel sent to Appellant explaining that counsel believes that Appellant's claim s lack merit. I n that letter, PCRA counsel properly informs Appellant that Appellant may continue his appeal pro se, or may retain private counsel at his own expense. See Letter, 7/ 30/ 2013.

Based upon the foregoing, we conclude that PCRA counsel has com plied substantially with the Turner/ Finley requirements. See Doty, supra. However, before passing upon PCRA counsel's motion to withdraw, we must conduct our own independent review of the record.

Our standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for those findings in the certified record. Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citing Commonwealth v. Smith, 995 A.2d 1143, 1149 (Pa. 2010)).

All of Appellant's issues allege ineffective assistance of counsel. We begin with a summary of the legal framework governing such claims:

[ A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the "[ i] n effective 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." 42 Pa.C.S. § 9543(a)(2)(ii). "Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel's performance was deficient and that such deficiency prejudiced him ." Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). "If a petitioner fails to prove any of these prongs, his claim fails." Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation omitted). Generally, counsel's assistance is deem ed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. See Ali, supra. Where matters of strategy and tactics are concerned, "[ 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." Colavita, 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012) (quotation, quotation marks, and citation omitted). "'[ A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.'" Ali, 10 A.3d at 291 (quoting Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008) (citing Strickland, 466 U.S. at 694)).

Commonwealth v. Spotz, 35 WAP 2012, ___WL __, at * 14 (Pa. Jan. 17, 2014) (citations modified) . With the foregoing in m ind, we begin our review.

In his first issue, Appellant claims that trial counsel was ineffective for failing to object to a declaration and certification by the Florida police officer concerning the use of her photographs in the "Brianna" profile. See Notes of Testimony Part I ("N.T. Part I "), 6/ 21/ 2010, at 86. This verification was entered into evidence as Commonwealth's Exhibit 26. I d. In relevant part, Appellant's argument concerning this verification is that trial counsel's failure to object deprived him of his right of cross-examination: "I feel that [ the introduction of the pictures] violated m y constitutional rights as far as being able to cross-examine that person to see if those pictures were real or, you know, computer generated. . . . There's no proof that that was the age of [ the person in] those pictures." N.T. PCRA at 23. I n invoking his right to cross-examination, Appellant apparently is asserting that trial counsel's inaction allowed violation of Appellant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Appellant alleges that trial counsel's failure to object undermined confidence in the outcome of his trial. We disagree.

At the close of the PCRA hearing, PCRA counsel cited several cases that allegedly supported Appellant's position. I d. at 31. Specifically, counsel referenced the following authorities: Craw ford v. Washington, 541 U.S. 36 (2004) (holding that the Confrontation Clause applies to out-of-court statements); U.S. v. Ciesiolka, 614 F.3d 347 (7th Cir. 2010) (suppressing "ostrich instructions, " which impart knowledge to a defendant, where there was no evidence defendant willfully ignored a child's age); Commonwealth v. Rovinski, 704 A.2d 1068 (Pa. Super. 1997) (finding trial counsel effective despite failure to renew objection to photographs at trial); Commonwealth v. Raab, 845 A.2d 874 (Pa. Super. 2004) (holding that police reports are not admissible hearsay pursuant to the business records exception), reversed, 934 A.2d 695 (Pa. 2007) (reversing because hearsay evidence is "valid information in testing probable cause to arrest").[9]

Although not styled specifically as such, we agree with the PCRA court's determination that these citations are directed at establishing the potential merit of Appellant's first claim . PCRA Court Opinion ("P.C.O."), 12/ 4/ 2012, at 8 n.2. The only citations that address an issue arguably relevant to the instant case are Craw ford and Rovinski. With specific reference to Craw ford, the Supreme Court of Pennsylvania has recently set forth the following framework for evaluating alleged confrontation violations:

In Craw ford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment prohibits the use of testimonial hearsay obtained by police officers against a criminal defendant, even if such hearsay is reliable, unless the defendant has the opportunity to cross-examine the unavailable declarant. 541 U.S. at 54. Later, in Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), the United States Supreme Court addressed the "class of testimonial statements covered by the Confrontation Clause" delineated in Craw ford. 557 U.S. at 309-10. Such testimonial statements included "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits . . . that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." I d. (quoting Craw ford, 541 U.S. at 52).

Commonwealth v. Gatlos, 76 A.3d 44, 63-64 (Pa. 2013). For present purposes, we may assume, arguendo, that Appellant has presented an issue of arguable merit and that counsel's failure to object did not have a reasonable purpose. However, having assumed that this claim fulfilled the first two ineffectiveness requirements, we conclude that Appellant's claim must fail because he cannot demonstrate that trial counsel's failure to object prejudiced the outcome of trial.

The PCRA court has aptly explained the overall importance of these photographs to the Commonwealth's case:

[ At trial, Appellant] did not dispute that the photographs introduced by the Commonwealth were those he viewed during his chats with " Brianna." [ Appellant] testified that he thought the pictures depicted a person older than thirteen. The actual age of the person depicted in the photographs, while not entirely irrelevant, was less important than how the image appeared and what the jury believed the images conveyed to [ Appellant] . In other words, the issue in question was not the actual age of [ the Florida police officer] at the time the photographs were taken, but instead was whether [ Appellant] thought he was speaking to a thirteen[ - ] year[ - ] old girl.

P.C.O. at 9. To this end, the Commonwealth introduced other evidence to establish Appellant's belief that he was speaking to, and setting up a sexual rendezvous with, a thirteen-year-old girl. Specifically, the Commonwealth introduced numerous logs of the online conversations between "Brianna" and Appellant, which were read to the jury by Agent Frattare. See N.T. Part I at 83-84. The logs demonstrate that "Brianna" told Appellant that she was thirteen years old, see Notes of Testimony Part I I (" N.T. Part I I "), 6/ 21/ 2010, at 9-10, 35-36, that Appellant continued to engage Brianna in a sexually explicit conversation, id. at 12- 14, and that Appellant later set-up a meeting with her. I d. at 44-46.

Based upon the above, we cannot conclude that counsel's alleged failure to object to the photographs used in creating "Brianna's" profile was "sufficient to undermine confidence in the outcome of the proceeding." See Spotz, Ali, supra. Even if the pictures were excluded at trial, we do not believe that the outcome of the proceedings would have been affected. While the photographs had some probative value, we disagree with Appellant's attempts to recast this evidence as being the linchpin of the Commonwealth's entire case. The definitive evidence establishing Appellant's belief that he was communicating with a thirteen-year-old girl was not found in any photograph attendant to Brianna's profile, but rather in the aforementioned conversations between Appellant and "Brianna."

Even assuming, arguendo, that the photographs improperly were admitted at trial, their inclusion did not serve to undermine overall confidence in the resulting verdict. Accordingly, we agree with PCRA counsel's conclusion that Appellant's first three claim s are unavailing.[10]

Appellant's next three claim s assert that trial counsel was ineffective for failing to object to the introduction of various pieces of evidence, including: (1) the a for ementioned photographs of the Florida police officer used in the creation of the " Brianna" profile; (2) testimony related to the overall success of the " Brianna" profile; and (3) testimony from Special Agent Kelly Roberts related to her acting as the "voice" of "Brianna" during a phone call with Appellant. See Anders Brief at 4. Appellant argues that trial counsel's failure to object to the admission of this evidence was improper, and that this necessarily undermined confidence in the outcome of his trial. We disagree.

We begin with Appellant's allegation that trial counsel was ineffective for failing to object to the admission of the photographs of the Florida police officer. Specifically, Appellant argues that trial counsel should have objected to evidence related to the age of the Florida police officer in the photographs. See N.T. PCRA at 23 (Appellant agreeing that his "concern is regarding the age that was issued or stated for the person in the pictures"). We conclude that we already have discussed this issue adequately in our analysis of Appellant's first claim . See supra at 13-14. Although Appellant is now directly challenging the photographs, as opposed to the verification attending them, the subject matter of his argument remains substantively the same: trial counsel should have challenged the veracity of the photographs. Therefore, assuming, arguendo, that this claim presented an issue of arguable merit and that trial counsel's actions were unreasonable, Appellant has not demonstrated prejudice. See Spotz, Ali, supra. As discussed above, even if the photographs had been excluded at trial, we do not believe that the outcome of the trial would have been affected. See supra at 14. Therefore, Appellant's claim fails.

We turn to Appellant's allegation that trial counsel was ineffective for failing to object to testimony related to the overall success of the " Brianna" profile. Specifically, Appellant argues that trial counsel failed to object when Agent Frattare testified that he had " made upwards of forty arrests using the . . . Brianna profile" since December 2005. N.T. Part I at 89. We discern that Appellant's argument is that Agent Frattare used this statistic to bolster his credibility as a witness. See N.T. PCRA at 24 (Appellant stating that he believed Agent Frattare was " bolstering" his credibility with the arrest statistic). Appellant asserts that trial counsel's failure to object undermines confidence in the result at trial. We disagree.

Appellant characterizes Agent Frattare's testimony above as "bolstering evidence" that was aim ed at increasing his credibility in the minds of the jury. See Commonwealth v. Fisher, 764 A.2d 82, 87 (Pa. Super. 2000) (quoting Commonwealth v. Boyd, 672 A.2d 810, 812 (Pa. Super. 1996) (" [ B]olstering evidence . . . is not admissible unless the character of the witness has first been attacked, and even then, only at the court's discretion."). Agent Frattare's comments regarding the arrest record of the " Brianna" profile ensued during a lengthy line of questioning that related the process involved in creating the " Brianna" profile and explained how the profile was utilized by law enforcement. N.T. Part I at 77-90. I t is not immediately evident to us that this testimony actually was offered for the improper purpose alleged by Appellant. The testimony was a description of the investigatory process of the agents of the Child Predator Unit, as opposed to an improper bolstering of Agent Frattare's character. As such, we do not share Appellant's conviction that this testimony was aimed at enhancing or polishing Agent Frattare's credibility with the jury. Appellant has not identified which element of character Agent Frattare's testimony was designed to bolster. Rather, the testimony seem s calculated to apprise the jury of the procedure associated with Agent Frattare's work. When asked about his decision not to object to this testimony at the PCRA hearing, trial counsel testified as follows: "I 'm not aware of grounds to object to that. I saw [ Agent Frattare's testimony] as a means to establish [ the officers'] experience in these kinds of cases. I 'm not sure I could have kept that out." N.T. PCRA at 11. Lacking a more cogent argument from Appellant, we are constrained to agree with trial counsel's assessment.

Based upon the foregoing discussion, we conclude that Appellant's issue concerning the "Brianna" profile lacks arguable merit. This claim amounts to a nearly bald assertion that Agent Frattare's testimony constituted improper character evidence. Our review of Pennsylvania decisional law has uncovered no cases directly addressing the issue of whether the number of arrests made by a police officer in the past constitutes impermissible character evidence, and Appellant has not directed us to any persuasive authorities.[11], [12] Because Appellant has not demonstrated that this claim has arguable merit, it fails.

In his next issue, Appellant asserts that trial counsel should have objected to the testimony of Special Agent Kelly Roberts, who acted as the "voice" of "Brianna" during a single phone call with Appellant just prior to his arrest. See N.T. Part I I at 84-89. Specifically, Appellant believes that trial counsel should have objected to the following portions of Agent Roberts' testimony: (1) that she had been the voice actor for the Child Predator Unit's online identities for the past three years, encompassing "over a hundred phone calls", id. at 84; and (2) that she had received a commendation for portraying the voice of "Brianna" in November 2009. I d. at 87. At the PCRA hearing, Appellant stated that, similar to the testimony of Agent Frattare, Agent Roberts was seeking improperly to " bolster" her character with the jury. We disagree.

Appellant's theory is identical to the argument presented in the prior issue. See supra at 16-18. Appellant's argument is equally unavailing in this context. Appellant's brief, and testimony at the PCRA hearing, fails to craft a cogent argument to establish the arguable merit of his claim . Appellant has not articulated what character trait Agent Roberts' testimony was "bolstering." Moreover, Appellant has failed to cite to any persuasive authority to demonstrate that trial counsel should have objected. When questioned regarding Agent Roberts' testimony at the PCRA hearing, trial counsel testified as follows:

Q: Your reason[ s] for not objecting [ to Agent Roberts' testimony] at that point in time would they be the same as they were for [ Agent] Frattare's?
A: Yes, sir.
Q: You believe it was m ore going towards [ the officers'] credentials rather than bolstering the testimony?
A: Yes.

N.T. PCRA at 12. Without more, we agree with trial counsel's assessment. Consequently, Appellant has not established that this claim has arguable merit. We agree with PCRA counsel's determination that the issue fails.

We turn now to Appellant's final issue, in which he alleges ineffectiveness on the basis that trial counsel failed to object to improper references made by the assistant district attorney. At the PCRA hearing, Appellant identified the following allegedly improper testimony by Special Agent Duane Tabak, who was one of the supporting officers in this case:

A: [ Appellant] maintained throughout the course of the interview that he was there to warn the child of the dangers of the [ I ] nternet that she could get hurt, raped, and/ or killed.
Q: So, he was coming across as like a [ G]ood Samaritan, if you will?
A: Yeah, that's what his, his approach was.
Q: And this is called this [ sic] offense unlawful contact with a minor?
A: Correct.
Q: Did anybody at any point in time tell [ Appellant] that there was no Brianna, that [ Agent Frattare] was the minor, if you will?
A: I don't recall having that conversation with [ Appellant] . We, the whole interview was centered around us referring to the undercover as Brianna and the defendant maintained that he was there to warn the child of dangers.
Q: Did he use those words child or minor, or were those your words?
A: He was there to warn, you know, I believe he probably would have said child, you know.
Q: I f he said adult, you would have written that down, right?
A: Certainly.
Q: Something like that is important, right?
A: Certainly.
Q: Absolutely. Did [ Appellant] ever at any time say that he was there to meet an adult?
A: No, he did not.
Q: That he m et [ online] ?
A: Not once during the course of the interview did [ Appellant] question whether this was an adult nor did he question whether it was an undercover proactive investigation. [ Appellant] maintained throughout the course of the interview that he was there to meet, warn the child of the dangers of the [ I ] nternet.

N.T. Part I I at 138-39. Appellant argues that this testimony included "statements made by [ the assistant district attorney] regarding [ Appellant's] post[ -] arrest silence and his duty to present evidence." Anders Brief at 20. Appellant argues that his trial counsel was ineffective for failing to object. We disagree.

After thoroughly reviewing the testimony above, we must conclude that there were no references made to Appellant's post-arrest silence or Appellant's failure to present evidence. Sim ply stated, the error of which Appellant complains did not occur as he describes it. The testimony did not improperly call the jury's attention to Appellant's failure to present evidence in his defense or his decision to remain silent after arrest. In the first place, Appellant's own testimony indicates that he chose not to exercise his right to remain silent following his arrest. See Notes of Testimony Part I I I ("N.T. Part I I I "), 6/ 22/ 2010, at 34 (Appellant agreeing that he "wanted to be one hundred percent fully cooperative with [ the] investigators" following his arrest). Appellant's claim that the above testimony improperly referenced post-arrest silence does not match his actual post-arrest behavior.

Moreover, the testimony above did not reference Appellant's failure to produce evidence, but, rather, challenged Appellant's version of events. Specifically, Appellant's defense at trial was that he never intended to have a sexual encounter with a thirteen-year-old girl, but rather believed that he was actually going to meet an adult. I d. at 34 ("I told [ the investigators] that I believed that [ Brianna] was an adult. I did not know who was going to show up whether it was going to be a male or a female."). The testimony of Agent Tabak was directed at challenging Appellant's version of events by establishing that, contrary to Appellant's later contentions, Appellant never claim ed that he was meeting an adult during his initial interrogation.

Evaluating this claim under the ineffectiveness framework provided above, we conclude that Appellant has failed to establish that his claim has arguable merit. The testimony cited by Appellant at the PCRA hearing does not m ake improper references to Appellant's post-arrest silence or his failure to present evidence. Because Appellant has not demonstrated that his final claim has arguable merit, the claim fails. See Simpson, supra.

As the record supports the PCRA court's determination that Appellant's issues lacked merit, and because that determination is free of error, we agree with PCRA counsel's determination that Appellant's claim s must fail. Furthermore, we have conducted our own independent review of the certified record and have uncovered no additional meritorious issues. Thus, we grant counsel's application to withdraw, and we affirm the order of the PCRA court.

Application to withdraw granted.

Order affirmed.

Judgment Entered.


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