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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
MATTHEW ALLEN LAWTON, :
:
Appellant : No. 1635 WDA 2015
Appeal from the PCRA Order August 27, 2015
In the Court of Common Pleas of Potter County
Criminal Division No(s): CP-53-CR-0000187-2010
BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 02, 2017
Matthew Allen Lawton (“Appellant”) appeals from the August 27, 2015
Order dismissing his first Petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541–9546. After careful review, we conclude
that neither of the issues underlying Appellant’s ineffective assistance of
counsel claims has merit. We, thus, affirm the PCRA court’s Order.
A jury convicted Appellant of 27 offenses in connection with his sexual
assault of a 10-year-old child. On September 10, 2012, the trial court
sentenced Appellant to an aggregate term of 51 to 102 years’ incarceration.
This Court affirmed Appellant’s conviction. See Commonwealth v.
Lawton, No. 1574 WDA 2012, unpublished memorandum at 1 (Pa. Super.
filed Feb. 21, 2014).
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On February 20, 2015, Appellant filed a pro se PCRA Petition. On April
6, 2015, the court appointed Jarett R. Smith, Esq., as PCRA counsel.
Attorney Smith filed an amended Petition asserting ineffective assistance of
trial counsel for “failing to present the defense that the actual perpetrator of
the sexual assault on the juvenile victim was … Patrick [S.] [who] … has a
lengthy criminal record of sexual assault and was known to the victim and
her family.”1 Amended PCRA Petition, filed 5/8/15 at 1. Annexed thereto
were copies of documents from the State of New York charging Patrick with
having inappropriately touched two girls on June 13, 2013 and December 1,
2013, respectively. Attorney Smith filed a Second Amended PCRA Petition
on May 29, 2015, challenging, inter alia, the admission of the testimony of
the nurse who examined the victim because she was not qualified to render
an expert opinion.
On August 27, 2015, the PCRA court held a hearing. Although the
Commonwealth had issued a subpoena to Appellant’s trial counsel to appear,
neither the Commonwealth nor Appellant called him to testify. Rather, the
“hearing” consisted of the prosecutor arguing extensively that counsel could
not be found ineffective for failing to present a defense based on evidence of
Patrick S.’s crimes that occurred after Appellant’s trial. Both the
Commonwealth and PCRA counsel agreed that there was no nexus between
1
Patrick S., d.o.b., 8/21/91, is the victim’s older brother. He testified for
the Commonwealth as a rebuttal witness.
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Patrick S.’s 2013 incidents and the 2010 incident for which Appellant was
convicted. Appellant provided a brief statement asserting, among other
things, his innocence.
The PCRA court denied the Petition on the record, characterizing the
issue pertaining to Patrick S. as “after discovered evidence” cognizable
under Section 9543(a)(2)(vi) of the PCRA. The court noted that Patrick S.’s
crimes occurred “two and a half years after the incident involving [Appellant]
which was on July 3rd of 2010 …[s]o it really is not after discovered
evidence that’s going to be exculpatory, and as we’ve talked previously
there has to be nexus between that evidence and the crime at issue.” N.T.
PCRA Hearing, 8/27/15 at 31. The PCRA court observed Appellant had not
presented any evidence at the PCRA hearing that Patrick S.’s was the
perpetrator of the crime on July 3, 2010, and concluded that none of
Appellant’s issues had merit. See id., at 31-2.
The court filed an Order denying Appellant’s PCRA Petition on August
28, 2015. Appellant filed a counseled Notice of Appeal on September 21,
2015.
Appellant subsequently sent a letter to both this Court and the PCRA
court indicating that he no longer wanted Attorney Smith to represent him.
The PCRA court then ordered Appellant to file a Pa.R.A.P. 1925(b)
Statement, but did not send the Order to Attorney Smith, who was still
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Appellant’s counsel of record. Appellant complied with the Order and filed a
pro se Rule 1925(b) Statement.2
On October 30, 2015, Attorney Smith filed a Petition to Withdraw as
Counsel as per the request of Appellant. On November 10, 2015, the court
scheduled a Grazier3 hearing for December 10, 2015. On November 16,
2015, the PCRA Court filed an “Opinion in Support of Ruling” addressing the
issues Appellant had raised in his pro se Rule 1925(b) Statement.
The court held a Grazier hearing on December 10, 2015, at which
Appellant and his attorney agreed to continue working together and the
court, thus, denied counsel’s Petition to Withdraw.
On April 4, 2016, Attorney Smith filed a Brief on behalf of Appellant,
raising issues that Appellant had failed to raise in his pro se Rule 1925(b)
Statement. We declined to review the merits of the appeal, concluding that,
because Appellant was represented by counsel when he filed his Rule
1925(b) Statement, the pro se Rule 1925(b) statement was a legal nullity.
We, thus, remanded to the PCRA court for the filing of a counseled Rule
1925(b) Statement, as well as the issuance of a new Rule 1925(a) Opinion,
2
In his Pa.R.A.P. 1925(b) statement, Appellant asserted issues pertaining to
the investigation of his case, trial court error in admitting the testimony of
the emergency room nurse who had compiled the rape kit on the victim, and
newly discovered evidence pertaining to Patrick S. See 1925(B) Statement,
filed October 30, 2015.
3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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and a new Appellant’s Brief. See Commonwealth v. Lawton, 1635 WDA
2015 (Pa. Super. filed Oct. 6, 2016).
On October 26, 2016, Attorney Smith filed a new Rule 1925(b)
Statement, asserting, inter alia, claims of ineffective assistance of counsel
“for failing to call known and named eye witnesses,” and failing “to question
the medical conclusions and qualifications of the [Commonwealth’s] medical
witness.” 1925(b) Statement of Matters to be Raised on Appeal, filed
10/26/16.
On November 7, 2016, the PCRA court issued a new Rule 1925(a)
Opinion. Appellant subsequently filed a new counseled Brief.4
In his brief, Appellant raises the following issues for our review:
1. Did the PCRA Court err in denying relief based on trial
counsel’s failure to call known witnesses where such
witnesses could have established that another possible
perpetrator had access to the victim?
2. Did the PCRA Court err in denying relief based on trial
counsel’s failure to challenge the admission of medical
testimony by the nurse who performed the initial examination
of the victim where such nurse had not been qualified as an
expert witness?
Appellant’s Brief at 2.
We review the denial of a PCRA Petition to determine whether it is
supported by the record and free of legal error. Commonwealth v. Fears,
4
Appellant’s counsel passed away soon after filing the new Rule 1925(b)
Statement. The PCRA court appointed new counsel, who filed Appellant’s
new Brief after receiving several extensions from this Court.
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86 A.3d 795, 803 (Pa. 2014). We grant great deference to the findings of
the PCRA court, and “these findings will not be disturbed unless they have
no support in the certified record.” Commonwealth v. Wilson, 824 A.2d
331, 333 (Pa. Super. 2003). “The 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 trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover, “where a
PCRA court’s credibility determinations are supported by the record, they are
binding on the reviewing court.” Commonwealth v. White, 734 A.2d 374,
381 (Pa. 1999).
Appellant avers that he received ineffective assistance of trial counsel.
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 Appellant.” Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the
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test will result in rejection of the appellant’s ineffective assistance of counsel
claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
In his first issue, Appellant avers that trial counsel provided ineffective
assistance by not calling witnesses who “could have potentially established”
that Patrick S., the victim’s brother, was a “possible perpetrator of crimes
against [similarly-aged] children” because Patrick had committed child
sexual abuse crimes in New York in 2013. Appellant’s Brief at 5-6.5
Appellant asserts, for the first time in his Brief, that he had “provided
defense counsel with the identities of witnesses who could have potentially
established” that Patrick S. had, “as far back as about 1990,” committed
“possible earlier bad acts”6 and “trial counsel was aware of [Patrick S.] as a
possible perpetrator of sexual assaults against children.” Id. at 6.
Our review of the certified record indicates that at no time during the
PCRA proceedings did Appellant assert that there were witnesses that trial
counsel should have called. Rather, PCRA counsel argued at the PCRA
hearing only that Patrick S. himself should have been examined and
investigated by trial counsel as a possible perpetrator. See N.T. PCRA
Hearing, 8/27/15, at 22. Accordingly, this issue is waived. See Pa.R.A.P.
5
Appellant notes that the victim’s brother, Patrick S., was convicted in New
York in connection with the sexual abuse in 2013 of two children different
from the victim in this case.
6
Appellant testified that Patrick S.’s uncle had been in possession of child
pornography in “about 1990.” N.T. PCRA Hearing, 8/27/15, at 25. Patrick
S. was not born until 1991.
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302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”).
Moreover, even if Appellant had asserted his bald and speculative
claim of other witnesses in the PCRA court, he would be entitled to no relief.
To obtain relief on a claim that counsel was ineffective for failing to call a
potential witness, the PCRA petitioner must establish that:
(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).
Our review of the transcript from the PCRA hearing indicates that at no
time did Appellant present witnesses, affidavits from potential witnesses, or
even names of witnesses who trial counsel had allegedly failed to call at trial.
Accordingly, Appellant could not, even with a most generous reading of his
averment, meet any of the prongs of the ineffectiveness test.
In his second issue, Appellant claims that counsel was ineffective for
failing to object to the admission of the testimony of Amy Geffers, R.N., the
emergency room nurse who conducted a rape kit examination on the victim
in the hospital. Appellant concedes that her testimony was not “couched as
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expert testimony,”7 but now avers that Nurse Geffers’s testimony was
“highly inappropriate because it created the appearance that a medical
practitioner was confirming that the victim had physical injuries medically
consistent with a sexual assault,” and “[t]rial counsel should therefore have
vehemently challenged its introduction.” Appellant’s Brief at 7.
The trial transcript shows that Nurse Geffers testified on direct
examination as to what she saw on the outside of the victim’s pelvic area
while she was conducting the rape kit.8 See N.T. Trial, 3/28/12-42/12, at
301-05. She did not draw any expert conclusions or render any medical
opinions. Most significantly, she did not, as Appellant now claims, “confirm”
or in any other way state that what she observed was consistent with sexual
assault.
Moreover, Appellant’s trial counsel strenuously cross-examined Nurse
Geffers and, in fact, even stated to Nurse Geffers: “with regard to your
7
Appellant previously asserted that Nurse Geffers’s testimony should not
have been admitted because she was not qualified as an expert. See
Second Amended PCRA Petition, filed 5/29/15 (stating “the female nurse
was not qualified to render an expert opinion as she was not certified as an
expert”); see also Appellant’s Rule 1925(b) Statement of Matters to be
Raised on Appeal, filed 10/16/16 (stating “[t]rial counsel failed to question
the medical conclusions and qualifications of the medical witness[.] Thus
the nurse who testified at trial was able to render medical opinion without
confirming an examination and the grounds for her professional opinion
without voir dire of credentials by trial counsel.”).
8
Nurse Geffers testified that the outside of the victim’s pelvic area appeared
red and irritated. See N.T. Trial at 299-332. She further testified that
neither she nor a physician conducted an internal vaginal examination.
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observations of the condition of the vagina when you say it’s excoriated and
red, you cannot diagnose what that means, correct?” and “You just make
the observation, correct?” Id. at 324-35. Nurse Geffers replied “Correct” to
both questions. There is, thus, no merit to Appellant’s underlying claim that
Nurse Geffers’s testimony “created an appearance of confirming that the
victim had physical injuries medically consistent with a sexual assault.”
Appellant’s Brief at 7.
Because neither of the issues underlying Appellant’s assertion of
ineffective assistance of counsel has merit, Appellant is not entitled to relief.
Our review indicates the PCRA court’s determination is supported by the
record and free of legal error. Accordingly, we affirm the Order denying
PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2017
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