J-S13020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOUGLAS EDWARD MATTSON
Appellant No. 890 WDA 2014
Appeal from the PCRA Order May 2, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000740-2008
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 02, 2015
Appellant, Douglas Edward Mattson, appeals from the May 2, 2014
order denying his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm.
The trial court summarized the procedural history of this case in its
May 2, 2014 opinion as follows.
On September 10, 2008, [Appellant] appeared
before the Honorable Ernest J. DiSantis, Jr., for a
trial by jury. On September 12, 2008, [Appellant]
was found not guilty of Rape of Child and Involuntary
Deviate Sexual Intercourse with a Child.1 [The
victim was Appellant’s nine-year-old step-daughter.]
Judge DiSantis declared a mistrial out of manifest
necessity, as the jury was hung on the remaining
counts of Aggravated Indecent Assault of a Child,
Endangering the Welfare of Children, Corruption of
Minors and three Counts of Indecent Assault.2
[Appellant] did not seek a new trial. Rather,
[Appellant] appeared before the Honorable John
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Garhart on January 8, 2009 and entered a plea of
nolo contendere to Endangering Welfare of Children
and Indecent Assault.3 Together with [Appellant]’s
plea, Judge Garhart ordered a State Board
Assessment regarding [Appellant]’s Sexual Offender
status pursuant to 42 Pa.C.S. § 9794. On April 28,
2009, [Appellant] was provided Notice to Defendant
of Duty to Register Pursuant to 42 Pa.C.S. § 9791.
That same day, [Appellant] was sentenced to an
aggregate term of incarceration of three (3) to ten
(10) years. [Appellant] then filed a Motion for
Modification of Sentence on May 8, 2009, and said
Motion was denied by Judge DiSantis on May 26,
2009.
On June 24, 2010, [Appellant] filed a Motion
for Post Conviction Collateral Relief, alleging therein
new facts pertaining to the credibility of a key
witness that testified against him. [Appellant] also
requested that he be permitted to withdraw his no
contest plea. On August 25, 2010, Judge DiSantis
granted the requested relief. Subsequently, the
Commonwealth submitted a motion to Judge
DiSantis, asking that all charges against [Appellant]
be reinstated. Judge DiSantis granted the
Commonwealth’s Motion on November 2, 201[0].
On November 18, 201[0], [Appellant]
proceeded to a jury trial []. [Appellant] was
convicted of Aggravated Indecent Assault of Child,
Endangering Welfare of Children, Corruption of
Minors, and three (3) counts of Indecent Assault. By
Order of November 22, 2010, th[e trial c]ourt
directed the Sexual Offenders Assessment Board to
perform an assessment of the [Appellant], again
pursuant to 42 Pa.C.S. § 9794. [Appellant]
appeared before th[e trial c]ourt for a Sexually
Violent Predator Hearing and sentencing on July 7,
2011. Based upon the testimony of Branda Manno,
member of the Sexual Offenders Assessment Board,
and reports submitted on the record at that hearing,
[] Appellant was adjudicated a Sexually Violent
Predator (hereinafter “SVP”).
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[Appellant] filed a Motion for Post-Sentence
Relief on July 15, 2011, requesting that th[e trial
c]ourt reconsider his SVP status. After a hearing on
the matter, th[e trial c]ourt denied [Appellant]’s Post
Sentence Motion to Reconsider Sentence.
On February 21, 2012, [Appellant] filed a
Petition for Post Conviction Collateral Relief
requesting that his right to direct appeal be
reinstated nunc pro tunc. [Appellant] alleged and
th[e trial c]ourt agreed that [Appellant]’s trial
counsel failed to file a direct appeal per [Appellant]’s
direct appeal rights and on April 2, 2012, [Appellant]
filed a Notice of Appeal. On Appeal [Appellant]
raised the following issues: (1) whether the trial
court erred in finding that he met the criteria for a
SVP under Megan’s Law, (2) whether the trial court
erred in not excluding the testimony of Richard
Beitzel, the victim’s mother’s paramour. On
December 21, 2012, the Superior Court affirmed
th[e trial c]ourt’s judgment of sentence. The
Superior Court held that the issue regarding the
testimony of Richard Beiztel was waived for purposes
of appellate review.[1]
On November 15, 2013, [Appellant] filed the
instant pro se PCRA Petition. On November 30,
2013, William J. Hathaway, Esq., was appointed
PCRA counsel. Attorney Hathaway submitted a
Supplemental PCRA Petition on behalf of [Appellant]
on December 10, 2013. Therein, Attorney Hathaway
argues that trial counsel, Attorney Nicole Sloane,
was ineffective for: (1) failing to object to the
Commonwealth’s leading questions posed to the
victim on direct examination, and (2) for failing to
object to the testimony of Richard Beitzel as
irrelevant. The Commonwealth filed its Response to
[Appellant]’s Supplemental PCRA on December 24,
2013.
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1
Commonwealth v. Mattson, 64 A.3d 34 (Pa. Super. 2012) (unpublished
memorandum).
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An evidentiary hearing and oral argument on
[Appellant]’s PCRA claims was held on February 25,
2014.
1
18 Pa.C.S. §[§] 3121(c) and [] 3123(b).
2
18 Pa.C.S. §[§] 3125(b), [] 4304, [] 6301, and []
3126.
3
18 Pa.C.S. §[§] 4304(a)(1) and [] 3126(a)(7).
Trial Court Opinion, 5/2/14, at 1-3 (some footnotes in original).
On May 2, 2014, the PCRA court filed an order and opinion, denying
the requested relief and dismissing Appellant’s PCRA petition. On May 30,
2014, Appellant filed a timely notice of appeal.2
On appeal, Appellant raises the following questions for our review.
A. Whether [] Appellant was afforded ineffective
assistance of counsel due to trial counsel’s failure to
object to pervasive leading questions posed by the
Commonwealth to the alleged victim during her trial
testimony?
B. Whether [] Appellant was afforded ineffective
assistance of counsel due to trial counsel’s failure to
object to the admission of trial testimony from
Commonwealth witness Richard Beitzel and in
otherwise failing to preserve said claim for direct
appellate review?
Appellant’s Brief at 2.
____________________________________________
2
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. The PCRA court referenced its May 2, 2014
opinion as containing the reasons for its rulings relative to Appellant’s issues
on appeal.
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We note the following principles, which guide our consideration of an
appeal from the denial of PCRA relief.
On appeal from the denial of PCRA relief, our
standard and scope of review is limited to
determining whether the PCRA court’s findings are
supported by the record and without legal error.
[Our] scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the
PCRA court level. The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court. However, this Court applies a
de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)
(en banc) (internal quotation marks and citations omitted), appeal granted,
105 A.3d 658 (Pa. 2014). Further, in order to be eligible for PCRA relief, a
petitioner must plead and prove by a preponderance of the evidence that his
conviction or sentence arose from one or more of the errors listed at 42
Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated
nor waived. Id. § 9543(a)(3).
In both of his issues, Appellant alleges ineffectiveness of trial and
direct appeal counsel. When reviewing a claim of ineffective assistance of
counsel, we apply the following test, first articulated by our Supreme Court
in Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
When considering such a claim, courts
presume that counsel was effective, and place upon
the appellant the burden of proving otherwise.
Counsel cannot be found ineffective for failure to
assert a baseless claim.
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To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 330 (Pa. 2011).
In his first issue, Appellant alleges ineffective assistance of trial
counsel for her failure to object to leading questions posed by the
Commonwealth to the victim during her direct testimony at trial. Appellant’s
Brief at 4. “The Petitioner was afforded ineffective assistance of counsel in
that defense counsel did not object to the pervasive and prejudicial level of
leading questions that were posed to the minor alleged victim[] during her
direct examination.” Id. at 5. The trial court determined that Appellant
failed to establish the second prong of the test for counsel ineffectiveness
because counsel articulated a reasonable strategy for declining to object to
the admittedly leading questions. PCRA Court Opinion, 5/2/14, at 4.
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Relating to the reasonable basis prong, [g]enerally,
where matters of strategy and tactics are concerned,
counsel’s assistance is deemed constitutionally
effective if [s]he chose a particular course that had
some reasonable basis designed to effectuate h[er]
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. Also [a]s a general rule, a
lawyer should not be held ineffective without first
having an opportunity to address the accusation in
some fashion…. The ultimate focus of an
ineffectiveness inquiry is always upon counsel, and
not upon an alleged deficiency in the abstract.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (internal
quotation marks and citations omitted).
The PCRA court summarized trial counsel’s explanation as follows.
As to the issue of leading questions posed to the
victim, [trial counsel] stated that the victim was
young and had a significant speech impediment.
Based on these circumstances, [trial counsel] felt
that [the] Assistant District Attorney[]’s leading
questions were appropriate and she feared alienating
the jury if she objected to or complained about the
leading nature of the questions. [Trial counsel] also
indicated that she did not want to highlight issues in
the minds of the jurors or indicate that there was
testimony that the defense did not want the jury to
hear by objecting.
Trial Court Opinion, 5/2/14, at 3; see N.T., 2/25/14, at 11-13. The PCRA
court found trial counsel’s testimony credible and her trial strategy in this
regard sound. Id. at 4.
Appellant argues to the contrary that counsel’s “explanation does not
reflect any sound strategic decision as the mere raising of objections to
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leading questions would not serve to denigrate the witness capacity but
instead is merely intended to curtail and impugn the conduct of the
examining counsel.” Appellant’s Brief at 6. We conclude the PCRA court’s
findings are supported by the record and its legal conclusion relative to the
soundness of trial counsel’s decision not to object correct. Confronting a
similar challenge to trial counsel ineffectiveness for failing to object to
leading questions posed to a minor witness, this Court held as follows.
Moreover, children are easily intimidated by the
courtroom setting, and a trial judge should display a
certain tolerance for direct, succinct, and even
leading questions. See, Commonwealth v. Willis,
552 A.2d 682 n. 3 ([Pa. Super.] 1988), allocatur
denied, 559 A.2d 527 ([Pa.] 1989) (children should
be asked direct rather than convoluted or compound
questions during examination). Thus, it was not
unreasonable for counsel to avoid repetitious
objections, knowing that the trial judge was allowing
the Commonwealth’s attorney latitude.
Commonwealth v. Polston, 616 A.2d 669, 678 (Pa. Super. 1992) (parallel
citations omitted), appeal denied, 626 A.2d 1157 (Pa. 1993).
Based on the foregoing, we conclude that Appellant failed to establish
that trial counsel’s decision not to object to the Commonwealth’s leading
questions had a “reasonable basis designed to effectuate h[er] client’s
interests.” Koehler, supra. Therefore, we discern no error or abuse of
discretion by the PCRA court in dismissing Appellant’s PCRA petition relative
to this claim.
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Appellant next claims trial counsel was ineffective for failing to object
to the testimony of Commonwealth witness, Beitzel, and otherwise preserve
the issue for direct appeal. Appellant’s Brief at 6. Beitzel was the paramour
of Appellant’s wife, who is the victim’s mother. Appellant’s Brief at 6. “The
introduction of his testimony in the Commonwealth’s case was extraneous,
irrelevant and not admissible as an element of proof and served to
prospectively confuse and distract the jury to the detriment of [Appellant]
through the introduction of a superfluous and irrelevant issue.” Id. at 8-9. 3
In her opening comments to the jury, trial counsel suggested that the
victim’s allegations may have been fabricated at the instigation of her
____________________________________________
3
Appellant also claims direct appeal counsel, Tina M. Fryling, Esquire, was
ineffective for failing to preserve this issue on direct appeal. On direct
appeal, this Court found Appellant’s issue waived for failure to include it in
his Rule 1925(b) statement. Mattson, supra at 14. Appellant alleges,
however, the following.
Moreover, upon review of the case record, not only
was said claim not preserved in the 1925(b)
statement as cited by the appellate court, the claim
would have been waived as well due to the failure to
preserve the claim for appeal either through timely
objection at trial or inclusion in a post-sentence
motion, neither of which was undertaken on behalf of
[A]ppellant in this case.
Appellant’s Brief at 3. Because of our resolution of Appellant’s claim of
ineffective assistance by trial counsel, infra, we do not reach this portion of
Appellant’s layered ineffectiveness of counsel claim. See Commonwealth
v. Lopez, 854 A.2d 465, 469 (Pa. 2004) (recognizing a layered
ineffectiveness claim begins with an assessment of trial counsel’s
performance and a failure to establish ineffectiveness of trial counsel defeats
the entire claim).
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mother, Appellant’s wife, to “facilitate [Appellant’s] removal from the home
and permit her to engage in another relationship without that impediment.”
Appellant’s Brief at 7; see N.T., 11/18/10, at 28-29. Trial counsel did not
mention Beitzel as the object of that motivation in her opening or in cross-
examination of other Commonwealth witnesses. The Commonwealth called
Beitzel in its case in chief to establish that he first became acquainted with
Appellant’s wife several months after the date of the alleged sexual assault.
See N.T., 11/19/10, at 4-5.4
____________________________________________
4
The Commonwealth notes that Beitzel’s “testimony was brief and limited in
scope.” Commonwealth Brief at 1. The direct testimony consisted of
substantially the following.
[DISTRICT ATTORNEY]
Q. And with whom do you live?
[Beitzel]
A. [A.R. (victim’s mother)], my girlfriend
[and my children.]
Q. All right. And, Richard, when did you
first start talking to [A.R.]?
…
A. Roughly around the beginning of March
of 2008.
Q. And how did you start your
communication with [A.R.]?
A. Through Lavalife chat.
Q. Through a chat site?
A. Yes.
Q. All right, did you know [A.R.] before the
beginning of March of 2008?
A. No.
Q. Did you know [Appellant] before?
A. No.
Q. Where were you living at the time you
were talking to [A.R.]?
(Footnote Continued Next Page)
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The PCRA court concluded that Appellant failed to establish the third,
i.e., the prejudice, prong of the test for counsel’s ineffectiveness. Trial Court
Opinion, 5/2/14 at 4. “With or without [] Beitzel’s testimony, the result in
this matter would have been the same considering all the testimony
presented in this case, including [Appellant’s] own testimony that he was
naked in bed with the victim.” Id.
Our Supreme Court has recently clarified the nature of a PCRA
petitioner’s burden to show prejudice from actions or inaction of counsel.
“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. [A] reasonable
probability is a probability that is sufficient to undermine confidence in the
outcome of the proceeding.” Commonwealth v. Spotz, 84 A.3d 294, 312
(Pa. 2014) (internal quotation marks and citations omitted).
However, [] the test for prejudice in the
ineffectiveness context is more exacting than the
test for harmless error, and the burden of proof is on
_______________________
(Footnote Continued)
A. Bucyrus, Ohio.
Q. And how long had you been living in
Ohio?
A. Roughly around six years.
Q. You started talking to [A.R.] in March of
2008. When did you actually meet her face-to-face?
A. I met her probably around the 5th of
April.
N.T., 11/19/10, at 4-5.
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the defendant, not the Commonwealth. As a general
and practical matter, it is more difficult for a
defendant to prevail on a claim litigated through the
lens of counsel ineffectiveness, rather than as a
preserved claim of trial court error.
Id. at 315 (internal quotation marks and citations omitted).
Upon careful review of the record, we agree with the PCRA court that
even had an objection to Beitzel’s testimony been sustained, it is unlikely
the outcome would have been different. See Spotz, supra. Beitzel’s
testimony was short and could have not have induced confusion or
distraction in the jury to make them lose focus of the issues in this case.
The testimony of the victim and other Commonwealth witnesses makes it
more than reasonably probable the jury’s verdict would be the same. See
generally N.T., 11/18-19/10. For these reasons, we conclude the PCRA
court committed no error or abuse of discretion in dismissing Appellant’s
PCRA petition relative to this claim.
Having determined the PCRA court properly dismissed Appellant’s
PCRA petition for his failure to meet his burden to establish trial counsel was
ineffective, we affirm the May 2, 2014 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2015
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Com. v. Mattson, D.
Combined Opinion