J-S38034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
VAN EDWARD SCOTT, :
:
Appellant : No. 55 WDA 2018
Appeal from the PCRA Order November 29, 2017
in the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000516-2010
BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 27, 2018
Van Edward Scott (Appellant) appeals from the order entered
November 29, 2017, denying his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We provide the following factual and procedural history. Appellant was
sentenced to an aggregate term of 9 to 18 years’ imprisonment following his
convictions relating to the improper prescribing of narcotic drugs and to
disposing of frozen or seized assets.
Appellant is a medical doctor who ostensibly engaged in a
pain management practice. As a central part of that practice,
[A]ppellant prescribed large dosages of narcotic opiate drugs to
his patients. During [A]ppellant’s trial, the Commonwealth
presented testimony from some of [A]ppellant’s patients who
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* Retired Senior Judge assigned to the Superior Court.
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typically described office visits as lasting five minutes or less and
consisting of a brief, perfunctory examination, followed by the
prescribing of large dosages of controlled substances.
***
The Commonwealth [] presented expert medical testimony
[ from Stephen Thomas, M.D.] to the effect that [A]ppellant’s
prescribing of controlled substances was outside of accepted
treatment principles.
Commonwealth v. Scott, 121 A.3d 1121-22 (Pa. Super. April 6, 2015)
(unpublished memorandum at 2-3) (citations to record omitted).
To rebut the testimony of the Commonwealth’s expert, Appellant
presented the testimony of Frank Fisher, M.D., as an expert
witness. Dr. Fisher maintains a physician’s and surgeon’s license
in the State of California. Dr. Fisher received his undergraduate
education from University of California-Berkeley[,] graduating
with a degree in anthropology[,] and graduated from Harvard
Medical School. He had several articles published and peer
reviewed relating to the area of pain management. Dr. Fisher
also performed several speaking engagements concerning the
topic of pain management.
On direct examination, it was revealed that Dr. Fisher was
charged with … murder, drug trafficking and conspiracy in the
State of California in February of 1999, arising from his
prescribing of opioids. Those charges were eventually dismissed
by the Attorney General’s office on the first day of trial according
to Dr. Fisher. Following the dismissal of the criminal charges,
the Board of Medicine of California raised issues regarding Dr.
Fisher’s ability to practice medicine. A resolution was reached in
which Dr. Fisher agreed to three years of probation concerning
his license to practice medicine, continuing medical education
courses and he would undergo evaluations at the University of
San Diego for mental and medical competency. Dr. Fisher was
able to complete the three years of probation and evaluations
without issue. At the time of trial, Dr. Fisher maintained an
unrestricted license to practice medicine in California.
Dr. Fisher was admitted as an expert witness at trial. He
testified that titration to optimal therapeutic effect for pain
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management consists of gradually raising the dosage to where it
is most effective and that method is necessary to effectively
treat chronic pain. He disagreed with Dr. Thomas’s testimony
that [Appellant’s] initial prescriptions to his patients containing
large dosages failed to comply with the standards in the
reasonable medical community as Dr. Thomas was basing his
opinion from the total daily dosage as opposed to the dosage at
each use. For example[,] Dr. Thomas stated that [] one patient
received an initial dosage of 180 milligrams daily, which actually
consisted of doses of 30 milligrams to be taken six times per
day. Dr. Fisher deemed that starting point to be a safe and
reasonable initial dosage. Moreover, Dr. Fisher felt that it was
“nitpicking” for Dr. Thomas to criticize [Appellant] for failing to
document every increment in the titration process. He also
determined that Dr. Thomas’s assessment that patients with
chronic pain should start with a 5 milligram dosage of
Oxycodone and be titrated to 10 milligrams by stating his belief
that a patient with chronic pain would be undertreated by that
dosage. Dr. Fisher ultimately opined [Appellant’s] starting
dosages and increments in titration complied with the standard
of care in the area of pain management.
In Dr. Fisher’s opinion, the dosages prescribed by
[Appellant] were expected dosages and fell within the standard
of care for treatment of individuals suffering from chronic pain.
Dr. Fisher explained chronic pain can be a deadly disease if not
properly treated, which was in direct conflict to Dr. Thomas
indicating pain will not kill a patient, but addiction will.
Dr. Fisher’s opinions were supported by a monograph
written by Dr. Perry Fine at the University of Utah and Dr.
Russell Portenoy at the Sloan Kettering Cancer Institute in New
York City, which, he opined, is the best synopsis of the standard
of care concerning the treatment of patients with chronic pain.
According to Dr. Fisher, Dr. Fine and Dr. Portenoy state the
elements of the standard of care for chronic pain are diagnosis
and effective treatment reached through titration of medication
to optimal therapeutic effect. Dr. Fisher explained [Appellant]
complied with the standard of care in treating patients suffering
from chronic pain with appropriate dosages of opioids.
Dr. Fisher further opined that [Appellant] was not engaged
in diversion of prescription medications based upon the medical
records from [Appellant’s] practice and his removal of a patient
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from treating with him for engaging in diversionary activities.
Dr. Fisher recalled [Appellant] utilized a pain management
contract with his patients to educate them about the type of
treatment they would be receiving and the repercussions they
faced if it is determined they are engaged in diversion of their
prescription drugs.
On cross examination, Dr. Fisher indicated that he did not
perform a residency or fellowship prior to entering the practice of
medicine. Moreover, Dr. Fisher did not practice long term pain
management from 1982 through 1992 as he was practicing
general medicine. His license to practice medicine was
suspended from 1999 until 2006 while his criminal charges were
pending as a condition of his bail. Furthermore, in the decision
and settlement with the Medical Board of California, Dr. Fisher
admitted there was an evidentiary basis to discipline his license
for gross negligence, repeated negligent acts and incompetence
as stated in Section 2234 [of the] Business and Professions Code
in California regarding his treatment of numerous patients.
Counsel for the Commonwealth then engaged in a line of
questioning concerning quotations issued by Dr. Portenoy
indicating he was incorrect in the method of prescribing opioids
for chronic pain and the risk of addiction for patients who receive
long term treatment of opioids for pain management. Dr. Fisher
responded to those quotes by explaining that Dr. Portenoy did
not change his opinions he rendered concerning [Appellant’s]
treatment of his patients. However, Dr. Fisher explained that
only 20 to 30 percent of his patients require pain management.
PCRA Court Opinion, 11/29/2017, at 6-9.
On June 24, 2013, a jury convicted [A]ppellant of six
counts of prescribing controlled substances not in good faith, six
counts of prescribing controlled substances outside of accepted
treatment principles, and one count of prescribing controlled
substances to a drug dependent person.1 Appellant was also
convicted of dealing in proceeds of unlawful activities, tampering
with or fabricating physical evidence, and obstructing
administration of law or other governmental function.2 On
October 29, 2013, [A]ppellant was sentenced to an aggregate
term of 9 to 18 years’ imprisonment.
__________
1 35 P.S. §§ 780–113(a)(14)(i), (a)(14)(iii), and
(a)(13), respectively.
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2 18 Pa.C.S. §§ 5111(a)(2), 4910(1), and 5101,
respectively.
Scott, 121 A.3d at 1121-22 (unpublished memorandum at 3-4) (citations to
record omitted).
Appellant timely filed a direct appeal to this Court, and on April 6,
2015, this Court affirmed Appellant’s judgment of sentence. Id. Our
Supreme Court denied allowance of his appeal on December 17, 2015. See
Commonwealth v. Scott, 128 A.3d 1206 (Pa. 2015). Appellant did not file
a petition for writ of certiorari to the United States Supreme Court.
Appellant timely filed pro se his first PCRA petition on January 25,
2017, alleging several instances of ineffective assistance of trial counsel.
The PCRA court appointed counsel, who filed an amended PCRA petition on
May 1, 2017. Relevant to this appeal, Appellant argued that trial counsel
was ineffective for failing to vet Dr. Fisher fully as an expert witness and
deciding to use said expert at trial, and failing to investigate facts properly
and review discovery with Appellant. Amended PCRA Petition, 5/1/2017, at
1-2. Following hearings spanning three days,1 at which Appellant and two of
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1 The first hearing date related only to the appointment of counsel for
Appellant.
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his trial attorneys testified,2 the PCRA court dismissed Appellant’s PCRA
petition on November 29, 2017.
Appellant timely filed a notice of appeal to this Court. 3 On appeal,
Appellant claims he is entitled to relief because trial counsel gave false
testimony at the PCRA hearings. Appellant’s Brief at v.
We begin with our standard of review.
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. Finally, we may affirm a PCRA court’s decision on any
grounds if the record supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016), quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015). “We
are bound by a PCRA court’s credibility decisions.” Commonwealth v.
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2 Appellant was represented at trial by a team of three attorneys: Kevin
Byers, Esquire, Eric Levin, Esquire, and J.J. Sandlin, Esquire. It appears that
Attorney Byers passed away prior to the PCRA hearings. N.T., 5/11/2017, at
26.
3 Appellant complied with Pa.R.A.P. 1925(b). The PCRA court complied with
Pa.R.A.P. 1925(a) by issuing an opinion on January 29, 2018, that both
addressed Appellant’s issues on appeal and also incorporated by reference
its opinion dated November 29, 2017. See PCRA Court Opinion, 1/29/2018,
at 5.
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Stewart, 84 A.3d 701, 708 (Pa. Super. 2013), citing Commonwealth v.
Johnson, 51 A.3d 237, 242-43 (Pa. Super. 2012) (en banc) (“The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court.”) (citation and quotation marks omitted).
Appellant argues that his trial counsel gave false testimony at the
PCRA hearings relating to the use of Appellant’s expert witness and trial
counsel’s investigation and review of discovery. Appellant’s Brief at v.
According to Appellant, trial counsel testified falsely at the PCRA hearings
when trial counsel stated that he had contacted other experts to serve as
witnesses at Appellant’s trial. Appellant’s Brief at v, 7. Appellant also claims
trial counsel gave false testimony when he stated that a prosecution witness
was Appellant’s office manager, but, according to Appellant, was actually a
part-time employee and confidential informant, which trial counsel knew or
should have known.4 Id.
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4 While Appellant couches his issues on appeal as challenges to the veracity
of trial counsel’s testimony at the PCRA hearings relating to his ineffective
assistance of counsel claims, in the argument section of his brief it is clear
that Appellant is also arguing that his trial counsel was ineffective.
Compare Concise Statement of Matters Complained of on Appeal,
1/29/2018 and Appellant’s Brief at v with Appellant’s Brief at 8-13.
Moreover, Appellant’s brief does not comply with the Pennsylvania Rules of
Appellate Procedure insofar as he failed to divide the argument into sections
that correspond with the two issues he raised in his statement of questions
involved. See Pa.R.A.P. 2119(a). Despite the foregoing, because
Appellant’s deficiency does not substantially impede our ability to perform
appellate review, we will address the merits of Appellant’s arguments. See
Thompson v. Thompson, 187 A.3d 259 (Pa. Super. 2018) (finding
(Footnote Continued Next Page)
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In addressing Appellant’s challenges to the veracity of trial counsel’s
testimony at the PCRA hearings, the PCRA court found that Appellant had
waived these claims,5 but concluded that even if there were no waiver,
Appellant’s claims would still fail. PCRA Court Opinion, 1/29/2018, at 2-5.
The PCRA court explained that it
considered all of the testimony presented during the hearings on
[Appellant’s] PCRA petition and determined that the testimony
provided by … [Appellant’s] trial counsel, concerning pretrial
preparations, reviewing evidence with [Appellant] prior to trial,
his efforts to vet the expert witness presented at trial and his
search for another expert witness was credible. In fact,
[Appellant’s] testimony failed to contradict much of [trial
counsel’s] testimony regarding those topics despite being
provided the opportunity to testify following the completion of
[trial counsel’s] testimony. In his rebuttal testimony, [Appellant]
merely explained [trial counsel] never reviewed the evidence
discovered in his apartment with [Appellant]. In addition,
[Appellant] explained that he did not have an opportunity to
discuss the evidence pertaining to the confidential informant with
[trial counsel] and, if he reviewed that evidence, he would have
been able to determine the identity of said informant.
[Appellant] was provided with a sufficient opportunity to
listen to [trial counsel’s] testimony and those were the only
portions he took exception to on the record prior to filing his
(Footnote Continued) _______________________
appellant’s violations of Pa.R.A.P. 2119 did not substantially impede
appellate review).
5 Here, the PCRA court concluded that Appellant waived these issues
because he “failed to raise [them] prior to serving his concise statement of
matters complained of on appeal….” PCRA Court Opinion, 1/29/2018, at 2.
In support, the PCRA court cites Commonwealth v. May, 31 A.3d 668 (Pa.
2011). In that case, May failed to file post-sentence motions with the trial
court. Because there is no such procedure following dismissal of a PCRA
petition by the PCRA court, May is inapposite and we disagree with the PCRA
court that Appellant’s claims are waived on this basis.
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concise statement of matters complained of on appeal. Based
upon a review of the entire record, there is no basis to assert the
determinations by [the PCRA court] were unreasonable as [trial
counsel’s] testimony was credible concerning his representation
of [Appellant] prior to and during trial, which included his
assertions he reviewed the evidence with [Appellant] prior to
trial as he was residing at [Appellant’s] apartment and the
discovery provided by the Commonwealth was present within the
apartment during that time. [Appellant] was granted access to
the discovery materials and could have reviewed it on his own to
aid his counsel in preparation for trial. Thus, [the PCRA court’s]
determinations concerning the credibility of the witnesses and
conflicts of evidence are supported by competent evidence and
are reasonable based upon the record created concerning
[Appellant’s] PCRA petition.
Id. at 4-5 (unnecessary capitalization omitted).
Instantly, the PCRA court made credibility determinations in favor of
the Commonwealth as to trial counsel’s testimony, and we are bound by
those credibility determinations as long as they are supported by the record.
See Stewart, 84 A.3d at 708. We agree with the PCRA court that its
determinations are supported by the record.6 Bearing these credibility
determinations in mind, we now consider whether counsel was ineffective.
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6 See N.T., 5/11/2017, at 7-9 (Appellant’s testimony that he did not ask trial
counsel to replace or remove expert witness, and that he did not discuss
with trial counsel any problems he had with using expert), id. at 17
(Appellant’s testimony that he “didn’t take exception to” expert witness
testifying on his behalf, and that, when asked who he would have retained
instead of expert, he was “not sure”), id. at 28-29 (trial counsel’s testimony
that Appellant and his trial attorneys met prior to trial and were aware of
and discussed expert witness’s criminal charges); see also N.T.
10/31/2017, at 13 (trial counsel’s testimony that he had previously worked
with the same expert, that Appellant never recommended to him that expert
not be used, and that trial counsel had difficulty finding an expert), id. at
(Footnote Continued Next Page)
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We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
an ineffective assistance of counsel claim, a PCRA petitioner must prove, by
a preponderance of the evidence: “(1) the underlying legal issue has
arguable merit; (2) that counsel’s actions lacked an objective reasonable
basis; and (3) actual prejudice befell the [appellant] from counsel’s act or
omission.” Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009)
(citations omitted). “A petitioner establishes prejudice when he
demonstrates that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 533 (citation and internal quotation marks omitted). A
(Footnote Continued) _______________________
14-16 (trial counsel’s testimony that he had discussions with an alternative
expert from Florida, who was critical of Appellant and declined to testify on
his behalf, that he had tried unsuccessfully to obtain an alternative expert
from Pittsburgh, that Appellant knew prior to trial about expert’s criminal
charges, that he discussed with Appellant that expert would be a good
witness because it would show the jury “what happens to doctors when
they’re wrongfully accused,” that he and Appellant both wanted to try to find
a different expert and that this expert was the “fallback,” and that expert
testified competently on direct examination at trial, but his credibility was
harmed on cross-examination due to questioning about his criminal
charges), id. at 22 (trial counsel’s testimony that he lived in Appellant’s
apartment during trial, that Appellant was actively involved in reviewing
discovery evidence with him, and that he and Appellant were prepared
before trial to cross-examine Commonwealth’s confidential informant), id. at
32-3 (Appellant’s testimony that trial counsel never pointed out to him
evidence relating to a confidential informant, that he did not have an
opportunity to discuss evidence relating to a confidential informant with trial
counsel, and that if he had been shown the evidence relating to a
confidential informant, he would have been able to decipher who informant
was).
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claim will be denied if the petitioner fails to meet any one of these
requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa.
Super. 2008). This Court may affirm the PCRA court’s order on any basis
even if it is different from that of the PCRA court. Commonwealth v.
Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).
With respect to Appellant’s claim that trial counsel failed to vet fully
Appellant’s expert witness and obtain a new expert, the PCRA court
explained that
[w]hen a petitioner claims ineffective assistance of counsel for
failure to call a witness, the petitioner bears the burden of
establishing that witness existed and was available to testify.
Commonwealth v. Chmiel, 612 Pa. 333, 387, 30 A.3d 1111,
1143 (2011). The petitioner must also demonstrate counsel was
aware of or had a duty to know the witness and the witness was
willing and able to appear. Id. This standard also applies to
trial counsel’s failure to call an expert witness. Furthermore,
“[t]rial counsel need not introduce expert testimony on his
client’s behalf if he is able to effectively cross-examine
prosecution witnesses ad elicit helpful testimony.” Id., 612 at
388, 30 A.3d at 1143 (citing Commonwealth v. Marinelli, 570
Pa. 622, 810 A.2d 1257, 1269 (2002)).
***
… [T]rial counsel recognized the Commonwealth’s case was
based upon the expert testimony of Dr. [] Thomas as he
explained [Appellant] failed to prescribe opioids in accordance
with the standards of the relevant medical community and he
failed to adhere to proper practices to eliminate diversion of the
prescription opioids. In response, trial counsel obtained the
services of Dr. [] Fisher to testify as a rebuttal witness to the
Commonwealth’s expert witness. However, [Appellant] contends
trial counsel was ineffective for failing to properly vet Dr. Fisher
based upon Dr. Fisher having been charged with similar offenses
as [Appellant] and trial counsel failed to procure another expert
witness better suited to contest the testimony of Dr. Thomas. At
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the hearing on this PCRA petition, [Appellant] stated he was not
sure who [sic] he would have retained as an expert witness to
replace Dr. Fisher. Additionally, [Appellant] testified that he did
not make a request [to his trial counsel] to replace Dr. Fisher
prior to trial.
***
Moreover, [trial counsel] discussed utilizing Dr. Fisher as
an expert witness with [Appellant], who did not voice an
objection to Dr. Fisher testifying at trial. [Trial counsel]
explained that Dr. Fisher was the only expert who was available
to testify on behalf of [Appellant. Trial counsel] contacted
another expert witness from Florida, who declined to testify at
trial as he was very critical of [Appellant]. Similarly, [trial
counsel] attempted to procure expert testimony from a physician
located in Pittsburgh, Pennsylvania, who also declined to testify
on [Appellant’s] behalf. … Dr. Fisher was the only expert witness
known to trial counsel who expressed a willingness to testify on
[Appellant’s] behalf. Dr. Fisher was able to adequately explain
titrating to effect and provided a reasonable explanation as to
the method utilized by [Appellant] and that said methods
complied with the standards of the medical community for
prescribing opioids to treat patients with chronic pain.
***
[Appellant] argues that trial counsel was ineffective, in
accordance with Hinton [v. Alabama, 571 U.S. 263 (2014)], for
calling Dr. Fisher to testify at trial as opposed to obtaining the
testimony of another qualified expert. However, Hinton does
not provide a basis for relief for [Appellant] as the [U.S.]
Supreme Court held that trial counsel was ineffective for failing
to obtain a competent and qualified expert witness based upon
his failure to review the appropriate Alabama statute, which
would have allowed him to be reimbursed for funds necessary to
obtain a qualified expert witness. It is important to recognize
that trial counsel in Hinton was aware the expert witness he
presented at trial was not properly qualified to rebut the
testimony of the State’s expert witness, which is not the
situation in the current matter as [Appellant’s] trial counsel did
not acknowledge that Dr. Fisher lacked the proper qualifications
to rebut the testimony of Dr. Thomas. The [U.S.] Supreme
Court specifically refused to require the courts to compare the
qualifications of experts chosen to an expert that may have been
hired. Id. [at 275]. [Appellant] is now requesting [the PCRA
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court] perform a comparison of Dr. Fisher with some unidentified
expert that may exist to determine whether trial counsel was
ineffective without identifying or presenting testimony from
another expert that was available and willing to testify on his
behalf at trial.
This case is similar to [Commonwealth v.] Rivera, [108
A.3d 779 (Pa. 2014)], where trial counsel provided the
testimony of an expert witness who was available and willing to
testify on behalf of [Rivera]. [Here, i]t is completely reasonable
for trial counsel to rely upon information and testimony provided
to him by Dr. Fisher. Trial counsel will not be held to be
ineffective for falling to consult with another expert and provide
said expert at trial merely in hopes of obtaining a more favorable
conclusion. This rationale is even more persuasive in this case
than in Rivera as [Rivera] was able to identify and produce a
report from an expert willing to testify more favorably in his
defense[, while Appellant] in the current case has not identified
nor presented any indication an expert witness exists to provide
testimony more favorable than the testimony provided by Dr.
Fisher.
PCRA Court Opinion, 11/29/2017, at 21, 27-31 (unnecessary capitalization
omitted). We agree with the PCRA court’s determination that there is no
merit to Appellant’s ineffective assistance of counsel claim regarding his trial
counsel’s failure to vet fully Appellant’s expert witness and obtain a new
expert. Thus, we conclude the PCRA court properly dismissed this claim.
As for Appellant’s claim regarding trial counsel’s failure to investigate
adequately facts and review discovery with him, we likewise agree with the
PCRA court that this claim is without merit.
… [T]he testimony demonstrates that [trial counsel] met
with [Appellant] on numerous occasions, even residing at
[Appellant’s] apartment prior to trial. The discovery provided by
the Commonwealth was present at [Appellant’s] apartment and
[trial counsel] explained that he reviewed said discovery with
[Appellant] as [trial counsel] was residing with [Appellant] prior
to and during trial. [Trial counsel] emphasized [Appellant] was
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actively involved in reviewing and analyzing the discovery and
[trial counsel] believed they reviewed all of the potential
exculpatory evidence. [The PCRA court] finds [trial counsel’s]
testimony credible in this regard. Therefore, [Appellant] is not
entitled to a new trial as [trial counsel] frequently conferred with
[Appellant] and properly reviewed discovery with him.
PCRA Court Opinion, 11/29/2017, at 34-35. The PCRA court’s determination
is supported by the record, see note 6, supra, and we discern no error in its
dismissal of this claim.
Accordingly, we affirm the PCRA court’s order dismissing Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2018
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Com. v. Scott, V.
Combined Opinion