Com. v. Ewing, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DOUGLAS ELTON EWING
Appellant No. 2111 MDA 2012
Appeal from the PCRA Order November 13, 2012
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000004-2009
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COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOUGLAS ELTON EWING
Appellant No. 2134 MDA 2012
Appeal from the PCRA Order November 13, 2012
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000005-2009
BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 08, 2014
Douglas Elton Ewing brings these consolidated appeals from the orders
entered on November 13, 2012, in the Court of Common Pleas of Bradford
County that denied, after an evidentiary hearing, his petitions filed pursuant
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to the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 9546.
ed testimony
1
Based upon
the following, we affirm.
Around 2000, Ewing began sexually assaulting his live-
nine-year-old daughter, S.V., and, on some occasions, he sexually assaulted
-year-
with S.V. In 2008, S.V. disclosed that Ewing frequently sexually assaulted
her over a period of approximately eight years, and that he did the same to
C.S. on a few occasions. C.S. later disclosed that Ewing engaged her in oral
sex and other sexual acts.
Ewing was charged at CR-0000004-2009 for crimes perpetrated upon
S.V., and at CR-0000005-2009 for crimes perpetrated upon C.S. The cases
were consolidated for trial, and a jury trial was held on May 1, 2009. At
CR-0000004-2009, Ewing was found guilty of rape of a minor, attempted
rape of a minor, involuntary deviate sexual intercourse, aggravated indecent
assault, and eight counts of corruption of minors. At CR-0000005-2009,
Ewing was found guilty of involuntary deviate sexual intercourse, aggravated
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indecent assault, and corruption of minors. Ewing was sentenced to 29 to
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imprisonment at CR-0000005-2009, for an aggregate term of imprisonment
of 43 to 98 years. On direct appeal, this Court affirmed the judgments of
sentence. See Commonwealth v. Ewing, 23 A.3d 1094 (Pa. Super. 2011)
[1711 MDA 2009] (unpublished memorandum, filed January 24, 2011);
Commonwealth v. Ewing, 24 A.3d 448 [1712 MDA 2009] (Pa. Super.
2011) (unpublished memorandum, filed February 9, 2011).
On May 23, 2011, Ewing filed pro se PCRA petitions at the separate
docket numbers, referenced above. Counsel was appointed and amended
petitions were filed by counsel on behalf of Ewing. On April 3, 2012, and
April 20, 2012, the PCRA court conducted an evidentiary hearing, and,
thereafter, denied PCRA relief. This consolidated appeal followed.2, 3
Preliminarily, we state the principles that guide our review:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA
and whether the PCRA
error. Commonwealth v. Phillips, 2011 PA Super 231, 31 A.3d
317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,
2005 PA Super 219, 877 A.2d 479, 482 (Pa. Super. 2005)),
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2
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Although
the PCRA judge did not author a Rule 1925(a) opinion due to his retirement,
the reasons for his ruling are fully set forth in his orders denying PCRA relief.
3
By per curiam order of December 18, 2012, this Court consolidated sua
sponte the appeals at 2111 MDA 2012 and 2134 MDA 2012.
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appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). A PCRA
petitioner must establish the claim by a preponderance of the
evidence. Commonwealth v. Gibson, 592 Pa. 411, 415, 925
A.2d 167, 169 (2007).
The essence of a claim of ineffective assistance of counsel is that
between defense and prosecution that the trial was rendered
unfair and the verdict rendered suspect. Commonwealth v.
Collins, 585 Pa. 45, 59, 888 A.2d 564, 572 (2005). As
originally established by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), and adopted by Pennsylvania appellate
courts, counsel is presumed to have provided effective
representation unless a PCRA petitioner pleads and proves all of
the following: (1) the underlying legal claim is of arguable merit;
objectively reasonable
prejudice, to the effect that there was a reasonable probability of
See, e.g.,
Commonwealth v. Natividad, 595 Pa. 188, 207, 938 A.2d
310, 321 (2007); Commonwealth v. Steele, 599 Pa. 341, 961
A.2d 786, 796 (2008); Commonwealth v. Dennis, 597 Pa.
159, 950 A.2d 945, 954 (2008); Commonwealth v. Franklin,
2010 PA Super 24, 990 A.2d 795, 797 (Pa. Super. 2010).
To satisfy the prejudice prong of this test when raising a claim of
ineffectiveness for the failure to call a potential witness at trial,
our Supreme Court has instructed that the PCRA petitioner must
establish that: (1) the witness existed; (2) the witness was
available to testify for the defense; (3) counsel knew, 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. Sneed, 616 Pa. 1, 22-
23, 45 A.3d 1096, 1108-09 (2012) (citing Commonwealth v.
Johnson, 600 Pa. 329, 351, 966 A.2d 523, 536 (2009) and
Commonwealth v. Clark, 599 Pa. 204, 222, 961 A.2d 80, 90
(2008)).
Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014).
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Ewing argues trial counsel was ineffective for failing to investigate and
present the medical testimony of Dr. John Weis, his primary care physician
beginning September 16, 1999. Ewing also claims counsel was ineffective
-brother, who is two years
With regard to Dr. Weis, Ewing claims that even though he and his
to the defense because he was able to both explain and verify that [Ewing]
had significant physical problems with his back and with erectile
during this time frame Id. at 18. Ewing contends
Weis would have also established that Ewing was not malingering when he
testified regarding his physical problems, or that his paramour was testifying
falsely. Id. at 19.
With regard to R.W., Ewing
benefitted the defense in that his testimony would have given the
perspective of a child living within the home when these offenses allegedly
Id. at 20. Ewing claims R.W. would have testified that S.V. had
a motive to lie about Ewing in order to have him removed from the home,
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because she was angry at Ewing over his rules and his forbidding her from
spending time with her boyfriend on her birthday. In addition, Ewing
argues R.W. could have explained to the jury that he observed only
appropriate interactions between Ewing and S.V. Id.
Following an evidentiary hearing at which Dr. Weis, R.W., Ewing and
relief, explaining:
1. The testimony of Dr. John Weis would not have changed
[Ewing] suffered from erectile dysfunction at the time he is
alleged to have committed sexual offenses; however Dr. Weis
treated the erectile dysfunction over a span of many months. Dr.
did
not testify that either the erectile dysfunction or the back
problems would have prevented [Ewing] from committing the
offenses. Indeed, during the time in question, [Ewing] fathered a
child.
Had Dr. Weis testified at trial, it is likely his testimony would
have harmed [Ewing], because the testimony tended to establish
that [Ewing] had both the desire and the ability to engage in
sexual intercourse.
2. The testimony of [R.W.] would have been of little
probative value, if any. His testimony amounted to no more than
his opinion that he observed no out [R.W.] manifestation of
sexual abuse being committed by [Ewing]. Further, the
testimony which [Ewing] sought to present at trial was that
[R.W.] was present all the time, and that no sexual contact could
have occurred. Defense counsel correctly assessed that [R.W.]
could not credibly testify that he was present all the time[.]
3. Trial counsel explained that the testimony of Weis and
[R.W.] was cumulative, was established through other
witnesses, and was not probative of any issue genuinely in
dispute at trial and that he therefore believed the testimony to
have no value.
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PCRA Court Orders, 11/13/2012.
Based
analysis of the proferred testimony of Dr. Weis and R.W. Accordingly, we
affirm the orders denying PCRA relief.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2014
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