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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC SWANHART, :
:
Appellant : No. 3597 EDA 2015
Appeal from the PCRA Order November 17, 2015
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0001750-2012
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 21, 2016
Eric Swanhart (Appellant) appeals from the November 17, 2015 order
that denied his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
As we write for the parties, we need not recite the facts underlying this
case. Suffice it to say that, on December 4, 2012, a jury found Appellant
guilty of the indecent assault of his stepdaughter based upon her out-of-
court statements, although she later recanted those statements and did not
testify to Appellant’s inappropriate touching at trial. On March 14, 2013,
Appellant was sentenced to six to 23 months of incarceration, followed by 24
months of probation. This Court affirmed Appellant’s judgment of sentence
on May 15, 2014. Commonwealth v. Swanhart, 104 A.3d 49 (Pa. Super.
2014) (unpublished memorandum).
*Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a counseled PCRA petition in which he claimed
trial counsel was ineffective for failing to raise several objections. Following
a hearing at which trial counsel addressed Appellant’s claims, the PCRA court
entered an order denying Appellant’s petition. Appellant timely filed a notice
of appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
Appellant presents this Court with five questions:
I. Whether the [PCRA] court erred by ruling that Appellant’s
trial counsel was not ineffective for failing to request an in
camera hearing to determine the admissibility of the victim’s
statements, or by not disputing the admissibility of the
statements at all?
II. Whether the [PCRA] court erred by ruling that Appellant’s
trial counsel was not ineffective because trial counsel failed to
object to hearsay testimony that was not part of the
Commonwealth’s tender years notice and therefore inadmissible?
III. Whether the [PCRA] court erred by ruling that Appellant’s
trial counsel was not ineffective, particularly because trial
counsel’s stated reasons for failing to object to inadmissible
hearsay evidence were insufficient?
IV. Whether the [PCRA] court erred by ruling that Appellant’s
trial counsel was not ineffective because trial counsel failed to
object to the Commonwealth expert vouching for the victim’s
credibility?
V. Whether the [PCRA] court erred by ruling that Appellant’s
trial counsel was not ineffective because trial counsel failed to
object to the Commonwealth’s improper closing argument, to
wit, the future dangerousness of Appellant?
Appellant’s Brief at 4-5 (answers below, suggested answers, and
unnecessary capitalization omitted).
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We begin with consideration of the applicable law. “The standard of
review for an order denying post-conviction relief is limited to whether the
record supports the PCRA court’s determination, and whether that decision is
free of legal error.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.
Super. 2016) (quoting Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.
Super. 2012)).
Appellant’s questions all concern the effectiveness of his trial counsel.
“Counsel is presumed to be effective; accordingly, to succeed on a claim of
ineffectiveness the petitioner must advance sufficient evidence to overcome
this presumption.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa.
2016) (citation omitted). To succeed on a claim of ineffective assistance of
counsel, a PCRA petitioner must plead and prove: “(1) that the underlying
claim has arguable merit; (2) that no reasonable basis existed for counsel’s
actions or failure to act; and (3) that the petitioner suffered prejudice as a
result of counsel’s error.” Id. (citation omitted). “Failure to prove any
prong of this test will defeat an ineffectiveness claim.” Commonwealth v.
Fears, 86 A.3d 795, 804 (Pa. 2014).
Appellant first contends that trial counsel was ineffective in failing to
seek an in camera hearing to determine the admissibility of the minor
victim’s out-of-court statements under 42 Pa.C.S. § 5985.1. Appellant’s
Brief at 13-15. That section provides, in relevant part, as follows.
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An out-of-court statement made by a child victim or witness,
who at the time the statement was made was 12 years of age or
younger…, not otherwise admissible by statute or rule of
evidence, is admissible in evidence in any criminal or civil
proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient indicia of
reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
42 Pa.C.S. § 5985.1(a).
The PCRA court determined that Appellant’s claim lacked arguable
merit because “the [trial c]ourt did hold an in camera hearing based upon
stipulated evidence with regard to the statements that the Commonwealth
wished to introduce under [section 5985.1], and after doing so found that
the evidence would be both relevant and reliable.” PCRA Court Opinion,
1/28/2016, at 11. That determination is supported by the record. See N.T.,
11/29/2012, at 16-17.
Further, the PCRA court concluded that Appellant was not prejudiced
by counsel’s decision to proceed upon stipulated evidence: “The stipulated
evidence used in the in camera hearing summarized what would have been
offered had a more formal in camera hearing been held, and based on the
stipulated evidence the [c]ourt found that the proffered testimony was
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admissible as both reliable and relevant.” PCRA Court Opinion, 1/28/2016,
at 13. Because the result of the hearing would have been the same in either
event, Appellant cannot establish prejudice. Commonwealth v. Matias, 63
A.3d 807, 810 (Pa. Super. 2013) (“To establish the third prong, i.e.,
prejudice, the appellant must show that there is a reasonable probability
that the outcome of the proceedings would have been different, but for
counsel’s action or inaction.”). He is entitled to no relief on his first claim.
With his next two issues, Appellant claims that trial counsel was
ineffective in not objecting to hearsay testimony that was not included in the
Commonwealth’s pretrial notice to introduce testimony under section
5985.1. Specifically, Appellant maintains that (1) the Commonwealth did
not give the required notice as to the out-of-court statements of the victim
to her friend M.H., Appellant’s Brief at 16-18, and (2) trial counsel’s basis for
not objecting to those statements was not a reasonable basis, id. at 19-20.
The PCRA court determined that Appellant did not establish that he
was prejudiced by counsel’s failure to object. First, although the statements
to M.H. were not included in the notice, trial counsel “‘fully expected’ [the
victim’s] statements to M.H. to be offered at trial, and was therefore able to
prepare his case accordingly.” PCRA Court Opinion, 1/28/2016, at 15
(quoting N.T., 9/18/2015, at 68). Moreover, “there was other relevant
testimony at trial that was consistent with the statements [the victim] made
to M.H.” Id. (citing N.T., 11/30/2015, at 172-73 (same events reported by
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the victim to Jamie Valleley of the Bucks County Children’s Advocacy Center)
and 184 (same events reported by the victim to Jeneen Overberger of the
Bucks County Office of Children & Youth; N.T., 12/3/2015, at 27-28 (same
events reported by the victim to Tinicum Township Police Officer Nicole
Madden)). The PCRA court’s factual findings are supported by the record.
Because Appellant did not show prejudice, his claim fails and we need
not consider the merits of the claim or the reasonableness of counsel’s
failure to object. Fears, 86 A.3d at 804 (noting that, if an ineffective
assistance claim falls short under any element, the court may skip ahead to
that element). Thus, his second and third issues warrant no relief from this
Court.
Appellant next argues that trial counsel was ineffective in not objecting
to the Commonwealth’s expert having vouched for the victim’s credibility.
Appellant indicates that Dr. John Shanken-Kaye “repeatedly” did so, offering
the example of the testimony that the victim’s out-of-court “‘report of her
molestation is much more credible and detailed than her supposed
recantation….’” Appellant’s Brief at 20 (quoting N.T., 12/3/2012, at 199).
Appellant maintains that such testimony by Dr. Shanken-Kaye “was
essentially his opinion as to the truthfulness of [the victim], which
specifically violates Rule 608.”1 Id.
1
“Opinion testimony about the witness’s character for truthfulness or
untruthfulness is not admissible.” Pa.R.E. 608(a).
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The PCRA court once again determined that Appellant failed to prove
the prejudice prong of his claim. Given the totality of the evidence
presented at trial, the PCRA court concluded as follows.
In our view, the record does not support a finding that a
reasonable probability of acquittal existed but for the action or
omission of trial counsel. Further, we mitigated any potential
threat of prejudice resulting from Dr. Shanken-Kaye’s testimony,
when we instructed the jury at trial:
Now, remember, you, the jurors, are the sole judges
of the credibility and weight of all of the testimony.
The fact that the lawyers and I have referred to
certain witnesses as expert witnesses and that the
witness may have special knowledge or skill does not
mean that their opinions are right.
PCRA Court Opinion, 1/28/2016, at 19 (citations and quotation marks
omitted).
Our review of the record supports the PCRA court’s findings. The
court’s denial of Appellant’s fourth claim is the product of neither an error of
law nor an abuse of discretion. See Commonwealth v. Flor, 998 A.2d
606, 632 (Pa. 2010) (“The jury is presumed to have followed the court’s
instructions.”); Commonwealth v. Miller, 987 A.2d 638, 654-55 (Pa.
2009) (affirming finding of no prejudice where, in light of the evidence as a
whole, the particular evidence at issue “was not as critical as Appellant
claims it was”). No relief is due.
Finally, Appellant contends that trial counsel rendered ineffective
assistance in neglecting to object during the Commonwealth’s closing
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argument. By way of background, the jury had received evidence that, after
Appellant was confronted with the victim’s allegations, he attempted to
commit suicide and, while being treated as a result, told hospital personnel
that he had put his hands down his stepdaughter’s pants. N.T., 11/30/2012,
at 70-79. Appellant offered an expert witness to explain that mental illness
and abuse by his mother made Appellant believe that any allegations of
improper acts lodged against him had to be true. N.T., 12/3/2012, at 112-
14. Accordingly, in his closing, Appellant’s counsel argued that this
explained why Appellant, although innocent, admitted to molesting the
victim:
We’re all affected by our childhoods. We’re all affected by
our parents and our influences growing up. … [M]y mother is
still in the back of my head. My father is still in the back of my
head. They are still alive in me, as your parents are in you, and
they influence who we are and how we respond to things. Now,
that happens to all of us. Look at what happened to [Appellant].
… He had a mother who was crazy, who would scream at him.
He used to go to bed at night and wrap his pillow around his
head so he wouldn’t hear the screaming, and she would tell him
over and over and over and over again that he had done
something wrong, that he was bad, that he stole this, that he
took that, that he had this attachment. That is what he lived
with.
Now, if we’re all affected by our parents, how was he
affected? I will tell you how he was affected. He grew up with
bipolar disorder. He’s on a series of medications. He is
completely incapable of confrontation. If someone tells him that
they think he did something or they did something, he is
immediately filled with terror. He can’t confront them. The
conditioning that his mother instilled in him will kick in. He’s
never been accused of a crime; there’s nothing in the record to
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show that he has, but suddenly he’s accused of this horrific act
and it triggered that response in him.
N.T., 12/4/2012, at 80-81.
During its closing, the Commonwealth argued the following, to which
Appellant contends counsel should have objected:
There was some argument that defense counsel made
about always having a mother’s voice in the back of her head. I
don’t dispute that could be the case.
You now have the opportunity to prevent something
similar for [the victim], because if you’re able to bring justice,
you may help prevent a lifetime of her experiencing her
stepfather’s hand down her pants. She’s got guts. If nothing
else, we can agree on that. We can agree she deserves some
respect and we can agree at long last she deserves closure.
Id. at 98.
Appellant maintains that the Commonwealth’s statements improperly
asked the jury to consider Appellant’s “[f]uture dangerousness” in
determining guilt and suggested that “something would continue unless the
jury did something.” Appellant’s Brief at 21. However, the PCRA court again
determined that Appellant failed to establish that he was prejudiced by
counsel’s failure to object:
The statements made by the Commonwealth in its closing were
not so egregious as to form[] in [the jurors’] minds fixed bias
and hostility towards [Appellant] which would prevent them from
properly weighing the evidence and rendering a true verdict. It
should also be noted that any potential for prejudice that existed
due to trial counsel’s inaction in regard to the Commonwealth’s
closing argument was mitigated by the fact that we instructed
the jury that the speeches and arguments of counsel are not
part of the evidence and you should not consider them as such.
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Accordingly, the record fails to support a finding that Appellant
was prejudiced by trial counsel’s failure to object during the
Commonwealth’s closing argument.
PCRA Court Opinion, 1/28/2016, at 22 (citations, quotation marks, and
unnecessary capitalization omitted). We find no error or abuse of discretion
in the PCRA court’s analysis. Appellant’s final issue merits no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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