Com. v. Kovaleski, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KENNETH ANDREW KOVALESKI :
:
Appellant : No. 721 MDA 2017
Appeal from the Order Entered March 23, 2017
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002000-2012
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 27, 2018
Appellant, Kenneth Andrew Kovaleski, appeals from the order entered
in the Lackawanna County Court of Common Pleas, which granted in part
and denied in part his first petition brought pursuant to the Post-Conviction
Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. We affirm in part, quash
in part, and deny the Commonwealth’s motion to quash the appeal as
untimely.
The relevant facts and procedural history of this case are as follows.
In June 2011, Appellant raped Victim, his adopted minor daughter.
Appellant continued to abuse Victim over the course of a year until she
reported the abuse to police in July 2012. On February 26, 2014, a jury
convicted Appellant of rape by forcible compulsion, statutory sexual assault,
incest, involuntary deviate sexual intercourse (“IDSI”) with a person less
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than sixteen (16) years of age, IDSI by forcible compulsion, unlawful contact
with a minor, aggravated indecent assault on a person less than sixteen (16)
years of age, endangering the welfare of children, corruption of minors, and
indecent assault.1 The court sentenced Appellant on July 2, 2014, to an
aggregate term of twenty-one (21) to forty-two (42) years’ imprisonment;
this sentence included mandatory minimums under 42 Pa.C.S.A. § 9718.
The court also adjudicated Appellant a Tier III offender and a sexually
violent predator (“SVP”) under the Sex Offender Registration and Notification
Act (“SORNA”) in effect at that time.2 On April 30, 2015, this Court affirmed
the judgment of sentence. Our Supreme Court denied Appellant’s petition
for an allowance of appeal on November 10, 2015.
On October 13, 2016, Appellant timely filed a PCRA petition. Appellant
filed a motion for recusal of the trial judge from presiding over the PCRA
proceedings on October 18, 2016, because the judge and the prosecutor
were Facebook friends. On November 16, 2016, the PCRA court held a
hearing on the recusal motion and denied relief. On February 13, 2017, the
____________________________________________
1 18 Pa.C.S.A. §§ 3121(a)(1), 3122.1(a)(1), 4302(a), 3123(a)(7),
3123(a)(1), 6318(a)(1), 3125(a)(8), 4304(a)(1), 6301(a)(1)(i), and
3126(a)(1), respectively.
2 SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, went into effect on
December 20, 2012, after the commission of Appellant’s sex offenses, which
occurred from June 2011 to July 2012. SORNA replaced Megan’s Law as the
statute governing the registration and supervision of sex offenders. SORNA
was recently amended by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa.
2018), Act 10 of 2018.
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PCRA court held an evidentiary hearing; the court initially denied PCRA relief
on March 8, 2017. Appellant timely filed a motion for reconsideration on
March 20, 2017. On March 23, 2017, the PCRA court expressly granted
relief in part, regarding the imposition of the mandatory minimum
sentences, and again denied PCRA relief in all other respects.
On April 10, 2017, the court resentenced Appellant to an aggregate
term of twenty (20) to forty (40) years’ imprisonment, without the
mandatory minimum sentences. After sentencing, Appellant objected to
both IDSI sentences on the record; and the court accepted the oral motion
for reconsideration in lieu of a written motion. Appellant, however, also
timely filed a written post-sentence motion on April 18, 2017, which claimed
the court was vindictive when it resentenced Appellant and the entire
sentence was contrary to the fundamental norms of sentencing. The court
did not rule on Appellant’s post-sentence motion. Nevertheless, on Monday,
April 24, 2017, Appellant filed a notice of appeal. 3 The PCRA court did not
____________________________________________
3 The present appeal lies from the final order of March 23, 2017, which
denied PCRA relief, after expressly granting Appellant’s motion for
reconsideration of the original order denying PCRA relief within the time for
filing an appeal from the original order of March 8, 2017. See
Commonwealth v. Gaines, 127 A.3d 15 (Pa.Super. 2015) (en banc)
(stating time to file appeal from denial of PCRA relief runs from date of that
PCRA order, rather than from date of new judgment of sentence). See also
Commonwealth v. Grove, 170 A.3d 1127 (Pa.Super. 2017) (stating PCRA
court’s grant of relief as to sentencing but denial of relief as to all other
PCRA claims is final, appealable order, even if resentencing has not yet
occurred).
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order and Appellant did not file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
WAS THE APPEAL PROPERLY PERFECTED WHERE THE
NOTICE OF APPEAL WAS TIMELY RECEIVED BY THE
PROTHONOTARY BUT NOT DOCKETED UNTIL AFTER THE
RELEVANT PERIOD HAD EXPIRED?
WAS THE RE-IMPOSITION OF ESSENTIALLY THE SAME
SENTENCE AT THE RE-SENTENCING HEARING IMPROPER?
DID THE PCRA COURT ABUSE ITS DISCRETION BY
REFUSING TO RECUSE ITSELF FOR THE PCRA HEARING?
WAS TRIAL COUNSEL INEFFECTIVE FOR NOT SEEKING
THE TRIAL COURT’S RECUSAL?
WAS TRIAL COUNSEL INEFFECTIVE FOR NOT SEEKING A
CHANGE IN VENUE?
WAS TRIAL COUNSEL INEFFECTIVE WHEN HE DECLINED
TO INTRODUCE AVAILABLE EVIDENCE THAT WOULD HAVE
IMPEACHED THE ALLEGED VICTIM’S TESTIMONY?
(Appellant’s Brief at 7).4
____________________________________________
4 For purposes of disposition, we have reordered Appellant’s issues.
Regarding issue one, we reject the Commonwealth’s suggestion that
Appellant’s appeal was untimely filed. Here, the Lackawanna County Clerk
of Courts received the notice of appeal on Monday, April 24, 2017, but for
unknown reasons the clerk did not docket the appeal until Tuesday, April 25,
2017. Appellant answered the Commonwealth’s motion to quash and
attached to his answer a Federal Express proof of receipt showing (by way of
time-stamp) that the Clerk of Courts had received the notice of appeal at
9:38 a.m. on April 24, 2017. Thus, the record makes clear Appellant’s
notice of appeal was timely filed, but for this breakdown in the operations of
the court. See Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super.
1995), appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996) (stating
(Footnote Continued Next Page)
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With respect to Appellant’s remaining claims, he argues the trial judge
should have recused herself from hearing the PCRA petition because an
outside observer could have reasonably questioned the integrity of the
process. Specifically, Appellant submits his former employment as a public
defender in the county while the judge was a prosecutor, Appellant’s
appearances in front of the judge in dependency matters, the judge’s
Facebook relationship with the prosecutor in Appellant’s case, and the
judge’s personal knowledge of facts in dispute all called into question the
judge’s partiality. In this respect, Appellant also complains trial counsel
should have moved for the judge’s recusal at trial because the appearance of
impropriety gave trial counsel a sufficient basis to file a recusal motion.
Next, Appellant contends trial counsel should have sought a change of
(Footnote Continued) _______________________
extraordinary circumstances, such as fraud or some breakdown in court’s
operation, will extend filing period). Accordingly, we deny the
Commonwealth’s motion to quash the appeal on this ground.
Regarding issue two, to the extent Appellant challenges the discretionary
aspects of his new sentence, the record demonstrates there remains an
open, timely-filed post-sentence motion. Therefore, we quash the appeal as
it applies to this issue. See Commonwealth v. Borrero, 692 A.2d 158
(Pa.Super. 1997) (stating when appellant files notice of appeal before trial
court has ruled on timely post-sentence motion, proper remedy is to quash
appeal, relinquish jurisdiction, and remand for trial court to consider post-
sentence motion). Additionally, the court should be aware of new law
decided during the pendency of this appeal. See, e.g., Commonwealth v.
Muniz, ___ Pa. ___, 164 A.3d 1189 (2017) and Commonwealth v. Butler,
173 A.3d 1212 (Pa.Super. 2017). Likewise, the court must be cognizant of
which version of Megan’s Law applies to Appellant, based on the dates of his
offenses.
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trial venue because of the prejudicial pretrial publicity surrounding the case.
This publicity included hostile media coverage towards Appellant and
improper comments from the prosecutor. Appellant asserts this level of
hostility in itself created prejudice and presumptively tainted the verdict.
Finally, Appellant claims trial counsel failed to present evidence that
would have directly contradicted Victim’s testimony, when counsel agreed to
limit Dr. Seasock’s testimony to a stipulation. Appellant avers Dr. Seasock
conducted both family and private therapy with Victim, and the private
therapy setting would have given Victim the opportunity to report allegations
of sexual abuse in confidence, which she did not report. Appellant also
contends Dr. Seasock would have testified that he would not report an
allegation of abuse from a minor in family therapy to family members.
Appellant submits Dr. Seasock’s testimony could have undermined Victim’s
credibility because Victim testified that she believed Dr. Seasock would
disclose any allegation of abuse to her adoptive mother. Based on these
allegations of ineffective assistance of trial counsel, Appellant concludes this
Court should grant him relief, vacate his judgment of sentence, and remand
the matter for a new trial. We disagree.
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
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denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such
deference, however, to the court’s legal conclusions. Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). If the record supports a PCRA
court’s credibility determination, it is binding on the appellate court.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
When examining a challenge to the PCRA court’s denial of a motion for
recusal, the relevant standard and scope of review are as follows:
In reviewing the denial of a recusal motion to determine
whether the judge abused [her] discretion, we recognize
that our judges are honorable, fair and competent. Based
on this premise, where a judge has refused to recuse
[herself], on appeal, we place the burden on the party
requesting recusal to establish that the judge abused [her]
discretion.
Commonwealth v. King, 576 Pa. 318, 322, 839 A.2d 237, 239 (2003).
[A] trial judge should recuse [herself] whenever [she] has
any doubt as to [her] ability to preside impartially in a
criminal case or whenever [she] believes [her] impartiality
can be reasonably questioned. It is presumed that the
judge has the ability to determine whether [she] will be
able to rule impartially and without prejudice, and [her]
assessment is personal, unreviewable, and final. Where a
jurist rules that [she]…can hear and dispose of a case
fairly and without prejudice, that decision will not be
overturned on appeal but for an abuse of discretion.
Commonwealth v. Blakeney, 596 Pa. 510, 538, 946 A.2d 645, 662
(2008), cert. denied, ___ U.S. ___, 129 S. Ct. 1317, 173 L. Ed. 2d 596 (2009)
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(internal citations omitted). “Pennsylvania law makes clear that it is
generally preferable for the same judge who presided at trial to preside over
the post-conviction proceedings. [F]amiliarity with the case will likely assist
the proper administration of justice. Only where it is adequately
demonstrated that the interests of justice warrant recusal, should a matter
be assigned to a different judge.” Commonwealth v. Lambert, 765 A.2d
306, 362 (Pa.Super. 2000).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). Under
the traditional analysis, to prevail on a claim of ineffective assistance of
counsel, a petitioner bears the burden to prove his claims by a
preponderance of the evidence. Commonwealth v. Turetsky, 925 A.2d
876 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).
The petitioner must demonstrate: (1) the underlying claim is of arguable
merit; (2) counsel had no reasonable strategic basis for the asserted action
or inaction; and (3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would have been
different. Id. See also Commonwealth v. Kimball, 555 Pa. 299, 724
A.2d 326 (1999). “A reasonable probability is a probability that is sufficient
to undermine confidence in the outcome of the proceeding.”
Commonwealth v. Spotz, 624 Pa. 4, 34, 84 A.3d 294, 312 (2014)
(quoting Commonwealth v. Ali, 608 Pa. 71, 86-87, 10 A.3d 282, 291
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(2010)). “Where it is clear that a petitioner has failed to meet any of the
three, distinct prongs of the…test, the claim may be disposed of on that
basis alone, without a determination of whether the other two prongs have
been met.” Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786,
797 (2008).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot
be found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the “reasonable basis”
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse
effect on the outcome of the proceedings. The [appellant]
must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. In [Kimball, supra], we held
that a criminal [appellant] alleging prejudice must show
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883
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(2002) (internal citations and quotation marks omitted).
“A party seeking recusal of the trial judge bears the burden of
establishing the grounds for recusal.” Commonwealth v. Lott, 581 A.2d
612, 616 (Pa.Super. 1990), appeal denied, 527 Pa. 663, 593 A.2d 839
(1991). “A trial judge is deemed the foremost arbiter of [her] own personal
bias or prejudice and hence [her] competence to preside over a matter.”
Commonwealth v. Mercado, 649 A.2d 946, 960 (Pa.Super. 1994). “[T]he
party seeking the disqualification of a trial judge has the burden of producing
evidence tending to show bias, prejudice or unfairness by the judge.”
Commonwealth v. McQuaid, 417 A.2d 1210, 1215 (Pa.Super. 1980). “[A]
trial judge should avoid not only impropriety but also the appearance of
impropriety.” Commonwealth v. Perry, 468 Pa. 515, 524, 364 A.2d 312,
317 (1976). A trial judge, however, is not required to recuse herself when
an acquaintance is a party or has an interest in the case. Id. “[W]hen a
defendant is tried by a jury, which exercised sole responsibility for
evaluating the testimony and arriving at a verdict, the integrity of the fact-
finding process is insulated from any predispositions held by the trial judge.”
Mercado, supra at 960.
Regarding a change of venue claim, “the trial court is in the best
position to address the atmosphere of the community and to judge the
necessity of any requested change.” Commonwealth v. Briggs, 608 Pa.
430, 466, 12 A.3d 291, 313 (2011). “A change of venue is compelled
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whenever a trial court concludes a fair and impartial jury cannot be selected
from the residents of the county where the crime occurred.” Id. at 466, 12
A.3d at 313. “[T]he pivotal question in determining whether an impartial
jury may be selected is not whether prospective jurors have knowledge of
the crime being tried, or have even formed an initial opinion based on the
news coverage they have been exposed to, but, rather, whether it is
possible for those jurors to set aside their impressions or preliminary
opinions and render a verdict solely based on the evidence presented to
them at trial.” Id. at 467, 12 A.3d at 314.
“The mere existence of pretrial publicity does not warrant a
presumption of prejudice.” Commonwealth v. Birdsong, 611 Pa. 203,
___, 24 A.3d 319, 331 (2011). In determining whether pretrial publicity
was inherently prejudicial, an appellate court must focus upon:
[W]hether any juror formed a fixed opinion of the
defendant’s guilt or innocence as a result of the [pretrial]
publicity. [Pretrial] publicity will be deemed inherently
prejudicial where the publicity is sensational,
inflammatory, slanted towards conviction rather than
factual and objective; revealed that the accused had a
criminal record; referred to confessions, admissions or
reenactments of the crime by the accused; or derived from
reports from the police and prosecuting officers.
If any of these factors exists, the publicity is deemed to be
inherently prejudicial, and we must inquire whether the
publicity has been so extensive, so sustained, and so
pervasive that the community must be deemed to have
been saturated with it. Finally, even if there has been
inherently prejudicial publicity which has saturated the
community, no change of venue is warranted if the
passage of time has sufficiently dissipated the prejudicial
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effects of the publicity.
Id. at ___, 24 A.3d at 331-32.
A court will consider the direct effects of publicity to determine the
efficacy of the passage of time. Briggs, supra. “Although it is conceivable
that pretrial publicity could be so extremely damaging that a court might
order a change of venue no matter what the prospective jurors said about
their ability to hear the case fairly and without bias, that would be a most
unusual case.” Id. at 468-69, 12 A.3d at 314.
To establish counsel’s ineffectiveness for failure to call a witness, a
petitioner must demonstrate:
(1) the witness existed; (2) the witness was available; (3)
counsel was informed of the existence of the witness or
counsel should otherwise have known of him; (4) the
witness was prepared to cooperate and testify for
Appellant at trial; and (5) the absence of the testimony
prejudiced Appellant so as to deny him a fair trial. A
defendant must establish prejudice by demonstrating that
he was denied a fair trial because of the absence of the
testimony of the proposed witness.
Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal
denied, 580 Pa. 696, 860 A.2d 123 (2004) (quoting Commonwealth v.
Khalil, 806 A.2d 415, 422 (Pa.Super. 2002), appeal denied, 572 Pa. 754,
818 A.2d 503 (2003)) (internal citations omitted).
Instantly, a jury convicted Appellant on February 26, 2014, of multiple
sex offenses he had committed from June 2011 until July 2012. On July 2,
2014, the court sentenced Appellant to an aggregate term of imprisonment,
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which included mandatory minimum sentences. This Court affirmed and our
Supreme Court denied Appellant’s petition for an allowance of appeal.
Appellant timely filed a PCRA petition on October 13, 2016. On
October 18, 2016, Appellant filed a motion for recusal of the trial judge from
presiding over the PCRA proceedings, because the judge and the prosecutor
were Facebook friends. The PCRA court held a hearing on the recusal
motion and denied it. The PCRA court held an evidentiary hearing on
February 13, 2017, and initially denied PCRA relief on March 8, 2017.
Appellant timely filed a motion for reconsideration, which the PCRA court
expressly granted in part on March 23, 2017, regarding the imposition of the
mandatory minimum sentences, and again denied PCRA relief in all other
respects.
The court resentenced Appellant on April 10, 2017, to an aggregate
term of twenty (20) to forty (40) years’ imprisonment, without the
mandatory minimum sentences. After sentencing, Appellant objected to
both IDSI sentences on the record, and the court accepted the oral motion
for reconsideration in lieu of a written motion. Appellant also timely filed a
written post-sentence motion, which claimed the court was vindictive when it
resentenced Appellant and the entire sentence was contrary to the
fundamental norms of sentencing. The court has not ruled on the post-
sentence motion. Nevertheless, Appellant filed a notice of appeal.
Regarding Appellant’s challenge to the PCRA court’s denial of his
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recusal motion, the PCRA court held a hearing on the matter and properly
denied relief. During the hearing, the judge stated her personal knowledge
of Appellant’s public defender position and his appearances before the judge
in a dependency matter did not affect the PCRA judge’s impartiality. See
Blakeney, supra. Additionally, the court’s Facebook connection with the
prosecutor, absent more, did not warrant recusal. See id. Upon review, we
conclude the PCRA court properly denied Appellant’s recusal motion and this
argument merits no relief. See King, supra.
With respect to Appellant’s claim that trial counsel’s failure to file a
motion for recusal constituted ineffective assistance, the PCRA court
analyzed this issue as follows:
In the instant case, there is an absence of the type of
interest which would give rise to an appearance of
impropriety much less to actual impropriety. First, the
relationship involved here, that of an acquaintance, [did]
not generate bias or prejudice against [Appellant].
[Appellant] was a public defender in Lackawanna County
during the same period of time in which [the judge] was a
deputy district attorney. During this entire period of time,
[Appellant] can only point to one (1) case which was
handled by both parties─a criminal matter which resulted
in a guilty plea. This is hardly enough to warrant a
personal relationship, which [Appellant] claims to have had
with [the judge].
* * *
In his testimony at the PCRA hearing, [trial counsel] stated
the following on why he chose not to file a motion for
recusal after hearing all of the evidence offered by
[Appellant]:
[PCRA counsel]: And did you have a strategy
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involved in any of this, in any of the reason[s] to not
ask for a recusal, either in full bench or individual
judge?
[Trial counsel]: I─the strategy was I didn’t think
that there was any evidence to show that [Appellant]
wouldn’t be able to get a fair trial with this bench,
either this specific judge or the bench here in
Lackawanna County.
* * *
Therefore, since the relationships alleged by [Appellant]
did not warrant recusal by [the PCRA court], we must look
beyond these allegations to determine if any prejudice
actually occurred. After a close review of all trial records,
it is clear that…the judge presided fairly and well and the
existence of any relationship between the judge and
[Appellant] and/or trial prosecutor had no effect on the
performance of the [judge during trial].
(Denial of PCRA Petition Memorandum, filed June 28, 2017, at 9-10)
(internal citations and quotation marks omitted). We accept the PCRA
court’s analysis and see no reason to disturb it. See Perry, supra.
Appellant failed to establish any evidence of bias, prejudice, or unfairness by
the judge, and therefore this claim lacks arguable merit. See Mercado,
supra; Poplawski, supra; Pierce, supra.
With respect to Appellant’s claim of ineffective assistance for trial
counsel’s failure to seek a change of venue, he PCRA court said:
[Appellant’s] entire argument rests solely on the
publication of four news articles. The first appeared on
WNEP, a local news station, on July 18, 2012. The second
article appeared in the Scranton Times Tribune on July 19,
2012. The third article appeared in the Scranton Times
Tribune on March 17, 2013. And the final article appeared
[on February 18, 2014,] in an online website called
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"Addicting Info." In addition to the above articles,
[Appellant] has submitted a number of comments which
are contained in the news articles.
(Denial of PCRA Petition Memorandum, supra at 7).
Appellant’s trial commenced on February 24, 2014. Appellant’s brief
focuses entirely on four articles, three of which were published at least
eleven months before trial, and a quote from the prosecutor contained in
two of the articles. This level of publicity does not constitute inherent
prejudice. See Birdsong, supra. The period between the publishing of
three of the articles and the start of Appellant’s trial was sufficient to
dissipate any prejudicial effects. See Briggs, supra. The final article,
published on a website called “Addicting Info,” does not warrant a
presumption of prejudice simply because of its proximity to the start of
Appellant’s trial. See Birdsong, supra. Additionally, trial counsel testified
at the PCRA hearing that in his extensive experience as a criminal defense
attorney, he did not think the pretrial publicity was extraordinary, for a
sexual assault case. Further, Appellant elected to have a jury trial, which
insulated the fact-finding process from any predispositions held by the
judge. See Mercado, supra. Therefore, Appellant’s argument lacks
arguable merit and merits no relief on the venue claim. See Pierce, supra.
Regarding Appellant’s final claim of ineffective assistance of counsel,
the PCRA court analyzed that issue as follows:
[Appellant] alleges trial counsel was ineffective for failing
to call Dr. John [Seasock] as a witness for the purposes of
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impeaching the credibility of [Victim]. At trial, [Victim]
testified that she attended family therapy at Dr.
[Seasock]’s office. [Victim] said in her mind everything
she said in his office was reported back to Jo Anna (her
adoptive mother and [Appellant’s] wife). Finally, [Victim]
said she did not believe it was private, even though she
saw him “privately maybe twice."
Further, [Victim] testified that she did not disclose the
sexual assaults to Dr. [Seasock] “because everything I
said inside of that room was reported right back to
[Appellant and Appellant’s wife]. It was family therapy.
That was not a personal therapist.”
At trial, [Appellant] sought to call Dr. [Seasock] to testify
as a defense witness. [Appellant] was prepared to ask Dr.
[Seasock] a series of questions relating to his treatment of
[Victim]. These questions included: (1) Are you a medical
doctor[;] (2) Are you a mandated reporter for sexual
abuse[; and] (3) Is it your practice to give your patients a
physical and a sexual abuse assessment? The
Commonwealth objected to the third proposed question on
the grounds of relevance and argued the question would
have been misleading to the jury. After [trial counsel] and
[counsel] for the Commonwealth engaged in a lengthy
argument, [the court] sustained the Commonwealth’s
objection. [The court] held that [Appellant] could call Dr.
[Seasock] as a witness but could not ask him the third
proposed question. Therefore, based on [the court’s]
ruling, both parties stipulated to Dr. [Seasock’s]
testimony. Specifically, that he is a healthcare
professional, that he is required to report suspected child
abuse, that he did not make a report of suspected child
abuse regarding the victim, and his failure to do so was
not a violation of his duties as a mandated reporter.
* * *
[Victim] testified she did not report the abuse to Dr.
[Seasock] because she believed he would disclose it to
[Appellant’s wife]. Whether [Dr. Seasock] would have or
could have disclosed a report of sexual abuse from
[Victim] to [Appellant’s wife] is beside the point and would
not have impeached [Victim’s] testimony. Clearly, the
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strategy employed by [trial counsel] was effective and in
no way prejudiced [Appellant].
(Denial of PCRA Petition Memorandum, supra, at 11-13) (internal citations
and some quotations marks omitted). We accept the PCRA court’s analysis
and see no reason to disturb it. See O’Bidos, supra; Pierce, supra.
Accordingly, we deny the Commonwealth’s motion to quash the appeal as
untimely and affirm the order denying Appellant PCRA relief on the grounds
asserted. Moreover, we quash the appeal regarding Appellant’s challenge to
the discretionary aspects of sentencing, due to the outstanding post-
sentence motion, and remand for the court to consider and rule on the
motion, as set forth in footnote four.
Order affirmed; appeal quashed in part; case remanded for further
proceedings. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/18
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