Full Opinion

J-S31029-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAYSON S. MONTANEZ : : Appellant : No. 328 MDA 2026 Appeal from the PCRA Order Entered February 5, 2026 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001520-2021 BEFORE: PANELLA, P.J.E., DUBOW, J., and SULLIVAN, J. MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 27, 2026 Appellant Jayson S. Montanez appeals from the Order denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 He asserts trial counsel provided ineffective assistance by failing to present his mother as a witness at his trial. After careful review, affirm. On September 28, 2022, a jury found Appellant guilty of committing numerous sexual offenses against his minor daughter (“Victim”) between 2012 and 2014.2 On January 2, 2023, the court imposed an aggregate ____________________________________________ 1 42 Pa.C.S. §§ 9141-46. 2 Notably, prior to Appellant’s trial, the court held a hearing on the Commonwealth’s motion to admit Pa.R.E. 404(b) evidence relevant to Appellant’s convictions in a prior case of possession of child pornography. At that hearing, a police officer testified that it was Appellant’s mother who alerted the police officer on June 15, 2017, that she had found child (Footnote Continued Next Page) J-S31029-26 sentence of 50 to 100 years’ incarceration. Following the denial of his post- sentence motion and the reinstatement of his direct appeal rights nunc pro tunc, Appellant filed a direct appeal. Appellant subsequently withdrew his direct appeal and filed a timely pro se PCRA petition. Following the appointment of counsel and the PCRA court’s grant of several extensions requested by counsel, Appellant filed a counseled supplemental PCRA petition on March 19, 2025, contending, inter alia, that trial counsel provided ineffective assistance by failing to call Appellant’s mother, Lisa Toledo, to testify at trial. He averred that she would have testified that she lived with Appellant during the relevant time period, that she never observed or suspected any type of abuse, and that she never observed her grandson sleeping outside of Victim’s bedroom door as the boy had asserted at trial. Supplemental PCRA Pet., 3/19/25, at ¶ 31. The PCRA court held a hearing on January 23, 2026. At the commencement of the hearing, the Commonwealth moved to dismiss the petition because Appellant’s trial attorneys were unavailable to testify—one attorney had died and the other had suffered a stroke. The court denied the Commonwealth’s motion. Ms. Toledo testified that Appellant had lived with his children in her house for two or three years, beginning in 2012. She testified that she never ____________________________________________ pornography images on Appellant’s phone. N.T. 9/27/2022, at 4-5. The court granted the Commonwealth’s motion. -2- J-S31029-26 saw Appellant sexually abuse Victim and that Victim never reported any abuse to her.3 She stated that she generally went to sleep an hour after the children went to bed and that she was always asleep before Appellant went to bed.4 Ms. Toledo also testified that she did not have a criminal record and was available and willing to testify at trial.5 On cross-examination, Ms. Toledo acknowledged that she was not with Victim all day, every day.6 Appellant testified that he told trial counsel that Ms. Toledo had spent the most time with Victim and that Ms. Toledo should be called as a witness at trial.7 The PCRA court denied relief. Appellant timely appealed. Appellant raises the following issue for our review: “Whether the trial counsel was ineffective in representing the Appellant.” Appellant’s Br. at 1. He argues that because Ms. Toledo had “noted that Appellant was rarely, if ever, alone with the victim[],” her testimony “would certainly have affected the decision of the jury.” Id. at 9. He further contends that “[t]here is no question that defense counsel’s presentation of Lisa Toledo would have ____________________________________________ 3 N.T. PCRA Hr’g, 1/23/26, at 10. 4 Id. at 8. 5 Id. at 11. 6 Id. at 14. 7 Id. at 19-20. -3- J-S31029-26 bolstered Appellant’s defense and strengthened Appellant’s chances of instilling reasonable doubt in the minds of the jury.” Id. We review the denial of a PCRA petition to determine whether the record supports the PCRA court's determination and whether its order is otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). “This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings.” Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010). To prevail on a petition for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include ineffective assistance of counsel, which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id. at 9543(a)(2)(ii). The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of demonstrating ineffectiveness rests on [the] appellant.” Id. To satisfy this burden, the appellant must plead and prove by a preponderance of the evidence that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) there is a reasonable probability that the outcome of the challenged proceeding would have been different absent counsel's error. Commonwealth v. -4- J-S31029-26 Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in rejection of the appellant's claim. Id. To establish the prejudice prong, the petitioner must prove a reasonable probability that the outcome of the relevant proceedings would have been different but for counsel’s action or inaction. Commonwealth v. Busanet, 54 A.3d 35, 46 (Pa. 2012). When a petitioner asserts that trial counsel failed to call a witness as requested, he must meet the following requirements: “(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.” Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). “Failure to call a witness is not per se ineffective assistance of counsel, for such a decision implicates matters of trial strategy.” Id. It is the petitioner’s burden to prove that the witness's testimony would have been helpful to the defense. Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012). The PCRA court here concluded that Appellant failed to satisfy the second and third prongs of the ineffective assistance of counsel test. [Appellant] did not establish that the failure to call Lisa Toledo as a witness at trial did not have some reasonable basis designed to effectuate his interest. The most glaring deficiency in [Appellant’s] presentation is his failure to demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different had Lisa Toledo testified. No evidence -5- J-S31029-26 whatsoever was presented to satisfy the third prong of the ineffectiveness test. The credible testimony and evidence presented by the Commonwealth at trial unquestionably proved [Appellant’s] guilt beyond a reasonable doubt. There is no reasonable probability that the outcome of [Appellant’s] trial would have been different had Lisa Toledo testified. PCRA Ct. Op., 2/5/26, at 6. The PCRA court also found that Appellant had “failed to provide credible testimony that trial counsel knew of, or should have known of the existence of, Lisa Toledo.” Id. Following our review of the record, we conclude that the PCRA court did not abuse its discretion in denying Appellant’s petition. Appellant’s argument—that his mother’s testimony would have “bolstered his defense” and “increased his chances of instilling reasonable doubt in the minds of the jury”—fails to convince this Court that he proved that the outcome of the proceeding would have been different if counsel had called his mother to testify. Likewise, in light of Ms. Toledo’s testimony that she was not always with Victim and that she was asleep before Appellant most nights, Appellant has failed to prove that the absence of his mother’s testimony was so prejudicial as to have denied Appellant a fair trial or that no reasonable basis existed for counsel’s failing to present her testimony at trial. Having concluded that Appellant failed to prove ineffective assistance of counsel, we conclude the PCRA court properly exercised its discretion in denying Appellant’s petition. Order affirmed. -6- J-S31029-26 Judgment Entered. Benjamin D. Kohler, Esq. Prothonotary Date: 10/27/2026 -7-