stating, “appellate court is bound by credibility determinations of [the] PCRA court where determinations are supported by record.” (citation omitted)
How later courts described this case
- stating, “appellate court is bound by credibility determinations of [the] PCRA court where determinations are supported by record.” (citation omitted)
- "an absence of evidence is not evidence of absence"
Written by the judges who cited it.
The opinion
J. S73009/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS TYMA, : No. 1908 WDA 2015
:
Appellant :
Appeal from the PCRA Order, November 10, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos. CP-02-CR-0002031-2011,
CP-02-CR-0002032-2011, CP-02-CR-0002034-2011
CP-02-CR-0002564-2011, CP-02-CR-0002583-2011
CP-02-CR-0004424-2011, CP-02-CR-0004600-2011
CP-02-CR-0007833-2011, CP-02-CR-0011977-2011
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 1, 2016
Thomas Tyma appeals from the November 10, 2015 order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The lengthy factual background of this case was summarized in a prior
memorandum of this court on direct appeal and need not be reiterated here.
See Commonwealth v. Tyma, 93 A.3d 513 (Pa.Super. 2013) (unpublished
memorandum at 2-13). In sum, between January and May 2011, the
Commonwealth filed nine separate criminal complaints against appellant, a
rheumatologist, relating to his inappropriate touching of 21 former patients
during medical exams. Seventeen of those former patients testified against
J. S73009/16
appellant at trial, and in the majority of cases, the complainant testified that
during a routine heart exam, appellant touched her breast in a manner
unrelated to the exam. In every instance but one, the inappropriate
touching occurred when the patient was alone with appellant.
On March 12, 2012, appellant waived his right to a jury and proceeded
to a bench trial. Appellant was represented at trial by Stanton D.
Levenson, Esq. (hereinafter, “trial counsel”). Following a six-day trial,
appellant was found guilty of 18 counts of indecent assault and 17 counts of
harassment1 on March 19, 2012. On May 24, 2012, appellant was
sentenced to an aggregate term of 60 days’ imprisonment, followed by one
year of county intermediate punishment and six years of concurrent
probation. On June 4, 2012, appellant filed timely post-sentence motions,
which were denied by the trial court on June 28, 2012. Appellant filed a
timely notice of appeal on July 5, 2012. On December 18, 2013, a panel of
this court affirmed appellant’s judgment of sentence. See Tyma, 93 A.3d
513. Appellant did not file a petition for allocatur with our supreme court.
Thereafter, on October 27, 2014, appellant filed a timely PCRA
petition. The Commonwealth filed its answer to appellant’s PCRA petition on
March 31, 2015. On May 1, 2015, appellant filed a response to the
Commonwealth’s answer. On June 25, 2015, the PCRA court provided
appellant with notice, pursuant to Pa.R.Crim.P. 907(1), of its intention to
1
18 Pa.C.S.A. §§ 3126(a)(1) and 2709, respectively.
-2-
J. S73009/16
dismiss his petition without a hearing. Thereafter, on November 10, 2015,
the PCRA court dismissed appellant’s petition without a hearing. This timely
appeal followed on December 4, 2015. On December 16, 2015, the PCRA
court ordered appellant to file a Rule 1925(b) statement by February 5,
2016. On February 4, 2016, appellant complied with the PCRA court’s
directive and filed a Rule 1925(b) statement spanning 23-pages and raising
29 distinct claims of ineffectiveness of trial counsel. The PCRA court filed a
comprehensive, 30-page Rule 1925(a) opinion, accompanied by a
three-page appendix, on May 12, 2016.
On appeal, appellant raises the following issues for our review:
I. Whether the PCRA Court Erred by Dismissing
Appellant’s PCRA Petition Without a Hearing on
Trial Counsel’s Ineffectiveness: (A) for Failing
to Call Available Exculpatory Witnesses; (B) for
Failing to Impeach Complainants with Available
Exculpatory Evidence; (C) for Failing to
Introduce Exculpatory Evidence, and (D) for
Failing to Obtain Evidence[?]
II. Whether the Cumulative Effect of [Trial]
Counsel’s Errors Deprived Appellant of His
Sixth Amendment Right to Effective Assistance
of Counsel?
Appellant’s brief at 1.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
-3-
J. S73009/16
findings will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). Where the PCRA court has dismissed a
petitioner’s petition without an evidentiary hearing, as is the case here, we
review the PCRA court’s decision for an abuse of discretion. See
Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013), cert. denied,
U.S. , 135 S.Ct. 56 (2014) (citation omitted). “This Court grants
great deference to the findings of the PCRA court, and we will not disturb
those findings merely because the record could support a contrary holding.”
Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa.Super. 2002)
(citation omitted). In order to be eligible for PCRA relief, a defendant must
plead and prove by a preponderance of the evidence that his conviction or
sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
§ 9543(a)(2). Further, these issues must be neither previously litigated nor
waived. 42 Pa.C.S.A. § 9543(a)(3).
Instantly, appellant’s claims challenge the effectiveness of his trial
counsel. To prevail on a claim of ineffective assistance of counsel under the
PCRA, a petitioner must plead and prove by a preponderance of the evidence
that counsel’s ineffectiveness “so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”
42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish the
following three factors:
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J. S73009/16
first the underlying claim has arguable merit;
second, that counsel had no reasonable basis for his
action or inaction; and third, that Appellant was
prejudiced.
Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.Super. 2014),
appeal denied, 104 A.3d 523 (Pa. 2014) (citation 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.” Commonwealth v. Johnson, 966
A.2d 523, 533 (Pa. 2009) (citations and internal quotation marks omitted).
“[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011), appeal denied, 30 A.3d
487 (Pa. 2011) (citation omitted). Additionally, we note that counsel cannot
be found ineffective for failing to raise a claim that is devoid of merit. See,
e.g., Commonwealth v. Ligons, 971 A.2d 1125, 1146 (Pa. 2009).
After a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the PCRA court,
it is our determination that there is no merit to the issues raised on appeal.
This court has long recognized that “the right to an evidentiary hearing on a
post-conviction petition is not absolute. It is within the PCRA court’s
discretion to decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support either in the record or other evidence.”
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (internal
-5-
J. S73009/16
citations omitted). Upon review, we agree with the PCRA court’s conclusions
that appellant’s ineffective assistance of counsel claims merit no relief.
Appellant first argues that his trial counsel was ineffective for failing to
call a number of allegedly exculpatory witnesses at trial; namely,
Physician Assistants (“PAs”) Kelly Hefner, Allison Karan, and
Natalie Cresenze, Office Manager Margaret Slagel, and former patients
Mary McBride, Paula Hiteshew, Linda Graham-Love, Rosemary Renard, and
Lara Louis. (Appellant’s brief at 11-30.) For the following reasons, we
disagree.
As the PCRA court properly recognized in its opinion, “[t]he entire
point of an exculpatory witness is to exculpate -- that is, to prove that
[appellant] did not do what he is accused of. However, a person who was
not present at the time of the incident(s) can only establish that they did not
witness the incident, not that it did not occur.” (PCRA court opinion,
5/12/16 at 20.) Instantly, the record reflects that each of the victims in this
case, with the exception of Roxanne Churilla, testified that they were alone
with appellant when the inappropriate contact occurred, and appellant freely
admitted that he did see each of these women by himself at various times.
(See notes of testimony, 3/12-19/12 at 27, 38-41, 66, 110-111, 143-144,
156-157, 206-207, 220-221, 356-358, 370, 380-392.) Therefore, the fact
that the testimony of appellant’s purported exculpatory witnesses, some of
whom did, in fact, testify to appellant’s character at trial, would have
-6-
J. S73009/16
indicated that he did not engage in any inappropriate touching in their
presence is irrelevant to whether he committed the crimes against the
victims on the days in question. Accordingly, we agree with the PCRA court
that trial counsel was not ineffective for failing to introduce this allegedly
exculpatory testimony at trial.
Appellant further argues that his trial counsel was ineffective for failing
to impeach the victims in this case with their prior convictions, medical
records, or -- in the case of Leslie Hemwell -- the fact that she had a fever of
103 degrees during one of her medical examinations. (Appellant’s brief at
11-30.)
Upon review, we discern no error on the part of the PCRA court in
concluding that trial counsel’s actions in foregoing the opportunity to
impeach the victims in this manner did not constitute ineffective assistance
of counsel. As the PCRA court noted, “a witness may not be contradicted on
collateral matters, and a collateral matter is one which has no relationship to
the case at trial.” (PCRA court opinion, 5/12/16 at 23, quoting
Commonwealth v. Saunders, 946 A.2d 776, 786 (Pa.Super. 2008),
appeal denied, 958 A.2d 1047 (Pa. 2008) (internal quotation marks
omitted).) We agree that the majority of the impeachment evidence
proffered by appellant would have been impermissible under this standard,
and in any event, the PCRA court, as fact-finder, was in the best position to
judge the credibility of the victims’ testimony. See Commonwealth v.
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J. S73009/16
Jones, 912 A.2d 268, 293 (Pa. 2006) (stating, “[t]he findings of a
post-conviction court, which hears evidence and passes on the credibility of
witnesses, should be given great deference.”); Commonwealth v.
Johnson, 966 A.2d 523, 532 (Pa. 2009) (stating, “appellate court is bound
by credibility determinations of [the] PCRA court where determinations are
supported by record.” (citation omitted)). Accordingly, appellant’s
ineffectiveness claim in this regard must fail.
In his final issue, appellant contends “the cumulative effect of [trial]
counsel’s errors deprived [him] of his Sixth Amendment right to effective
assistance of counsel.” (Appellant’s brief at 30-32.) We find that the PCRA
court properly rejected appellant’s contention that he was deprived of his
Sixth Amendment right to counsel on account of the cumulative effects of
trial counsel’s purported ineffectiveness. (See appellant’s brief at 30-31;
trial court opinion, 5/12/16 at 29-30, § 10.) Our supreme court has held
that “no number of failed [ineffectiveness] claims may collectively attain
merit if they could not do so individually.” Commonwealth v. Tedford,
960 A.2d 1, 56 (Pa. 2008) (citation omitted). In this instance, the PCRA
court concluded that they do not, and we adopt Judge McDaniel’s analysis as
to these various claims.
Accordingly, we find that the PCRA court’s May 12, 2016 opinion
comprehensively discusses and properly disposes of the issues presented.
-8-
J. S73009/16
We, therefore, adopt the PCRA court’s opinion addressing the merits of
appellant’s claims as our own for purposes of further appellate review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2016
-9-
Circulated 11/17/2016 03:48 PM
Circulated 11/29/2016 09:42 AM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
V. CC: 201102034, 201104600, 2011 02031
201104424,201102032,201111977,
201102564,201107833,201102583
THOMAS TYMA,
Defendant
OPINION
The Defendant has appealed from this Court's Order of November 10, 2015, which
dismissed his Post Conviction Relief Act Petition without a hearing. However, a review of the
record reveals that the Defendant has failed to present any meritorious issues on appeal and,
therefore, this Court's Order should be affirmed.
The Defendant was charged with numerous offenses1 in relation to a series of assaults the
Defendant, a rheumatologist, committed against 20 of his female patients. Prior to trial, the
charges relating to victims r:8LIL••and J·K-were nolle prossed. A bench trial
was held before this Court form March 12-19, 2012 and at the conclusion of trial, the Defendant
was found guilty of all charges. On May 24, 2012, he appeared before this Court and was
sentenced to a term of 60 days imprisonment followed by one (]) year of house arrest at Count 1
of 201102034 and two (2) consecutive terms of probation of two (2) years each, with nine (9)
I Due to the numerous charges, this Court has created a chart showing the charges, their disposition and
resulting sentence, which it has attached to this Opinion as Appendix J.
28a
•
additional two (2) year terms of probation run concurrently with the initial sentence. Timely
Post-Sentence Motions were tiled and were denied on June 26, 2012. The judgment of sentence
was affirmed by the Superior court on December 18, 2013. No further action was taken until
October 27, 2014, when the Defendant filed a counseled PCRA Petition. After reviewing the
record in its entirety as well as the Commonwealth's response and giving the appropriate notice
of its intent to do so, this Court dismissed the Petition without a hearing on November 10, 2015.
This appeal followed.
On appeal, the Defendant raises 29 claims2 of the ineffective assistance of counsel. This
Court has reviewed the issues and has combined and reordered them for manageability and ease
of understanding and will address them as follows:
Generally, in order to establish a claim for the ineffective assistance of counsel, "a PCRA
Petitioner must demonstrate, by a preponderance of the evidence, that: (1) the underlying claim
is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) there
is a reasonable probability that the result of the proceedings would have been different absent
such error." Comnmnwea1Ch v. Gib®n, 19 A.3d 512, 525-26 (Pa. 2011). "The Jaw presumes that
counsel was not ineffective, and the appellant bears the burden of proving otherwise ... [I]f the
issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not be
deemed ineffective for failing to pursue a meritless issue... Also, if the prejudice prong of the
2 Reference is made to the oft-cited quote from Judge Aldisert: "With a decade and a half of federal
appellate court experience behind me, I can say that even when we reverse a trial court, it is rare that a
brief successfully demonstrates that the trial court committed more than one or two reversible errors ...
When I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no
merit to any of them. J do not say that this is an irrebuttable presumption, but it is a presumption
nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by
effectiveness, not loquaciousness." Aldisert, The AJ2Pellatc Bar; Professional Competence md
Professional Respcmsibility- a Yi~ fi:Qm the J@undiced &ye of Qne Appellate Judae, 11 Cap.U.L.Rev.
445, 458 (1982).
2
29a
ineffectiveness standard is not met, 'the claim may be dismissed on that basis alone and (there is
noJ need (to] determine whether the [arguable merit] and [client's interests] prongs have been
met."' Commonwealth v. Khalil, 806 A.2d 415, 421-2 (Pa.Super. 2002). "With regard to the
reasonable basis prong, (the appellate court] will conclude that counsel's chosen strategy Jacked
a reasonable basis only if the petitioner proves that the alternative strategy not elected offered a
potential for success substantially greater than the course acutely pursued." Commonwealth v.
Busanet, 54 A.3d 35, 46 (Pa. 2012).
1. Failure to Petition for a Writ of Habeas Corpus
Initially, the Defendant argues that trial counsel was ineffective for failing to file a
Petition for Writ of Habeas Corpus to challenge the Commonwealth's evidence at the
preliminary hearing. He asserts that because the Commonwealth did not present expert
testimony at the preliminary hearing, it was unable to establish certain elements of the crimes
charged.
At a preliminary hearing, "the standard of proof for the Commonwealth is merely to
establish a prima facie case (i.e. that a crime has been committed, and that the accused is
probably the one who committed it), and there is no requirement that the Commonwealth
establish the accused's guilt beyond a reasonable doubt at this stage." Commonwealth y. Rogers,
610 A.2d 970, 972 (Pa.Super. 1992). "Although a preliminary hearing may permit capable
defense counsel to lay the groundwork for a trial defense, its intended purpose is not primarily to
provide defense counsel with the opportunity to assess the credibility of Commonwealth
witnesses, or to prepare a defense theory for trial, or to design avenues for the impeachment of
witnesses at trial. Nor is the purpose of a preliminary hearing to prove a defendant's guilt.
3
30a
Indeed, once a defendant has gone to trial and has been found guilty of the crime or crimes
charged, any defect in the preliminary hearing is rendered immaterial." Commonwealth v.
Sanchez, 82 A.3d 943, 984 (Pa. 2013).
A close examination of the Defendant's first claim reveals that it is actually a challenge to
the sufficiency of the evidence presented at the preliminary hearing. In light of the Defendant's
conviction beyond a reasonable doubt, any claims the Defendant has regarding the
Commonwealth's establishment of a prima facie case at the preliminary hearing are moot. See
Sanchez, supra. The Defendant has not established a claim for the ineffective assistance of
counsel in this regard and so this claim must fail.
2. Failure to File a Pretrial Motion to Dismiss
Next, the Defendant argues that counsel was ineffective for failing to file a Motion to
Dismiss because Allegheny County District Attorney Stephen Zappala's signature on the
Criminal Information was stamped and not hand-signed.
Our appellate courts have held that "a rubber stamped facsimile of the district attorney's
signature was sufficient compliance with the requirement of Pa.R.Crim.P. 225(b) that an
information be signed by the attorney for the Commonwealth." Commonwealth y. Evans, 473 A
2d 606, 607 (Pa.Super. 1984), citing Commonwealth v. Emanuel, 462 A.2d 653 (Pa. 1983).
Here, the Defendant makes no argument that the charges were improperly brought or
somehow brought by a rogue staff member without the authorization of Mr. Zappala or contrary
to Mr. Zappala 's intent. Rather, the Defendant's claim is entirely directed at the mere use of a
signature stamp instead of an original signature. Although this is not the most egregiously
meritless issue now brought by the Defendant (shockingly), it is emblematic of the wasteful
4
31a
nature of his claims. The stamp of Mr. Zappala's name was appropriate and legal and in no way
gives rise to a claim of ineffectiveness. This claim must fail.
3. Imputed Guilt During Jury Trial Waiver
Next, the Defendant argues that counsel's reference to the accusers as "victims" during
the jury trial waiver was "unauthorized" and "imput[ed] guilt to the Petitioner and caus[ed] a
complete breakdown in the adversarial process."
The following occurred during the jury trial waiver colloquy:
THE COURT: Bring your client forward, Mr. Levenson.
State your name.
THE DEFENDANT: Thomas Allen Tyma, M.D.
THE COURT: How old are you?
THE DEFEKDANT: Fifty-four years old.
THE COURT: How much education have you had?
THE DEFENDANT: Through medical school; 24 years.
THE COURT: Are you able to read, write -
THE DEFENDAl\1: I'm sorry; 26 years.
THE COURT: Are you able to read, write and understand the English language?
THE DEFENDANT: Yes.
THE COURT: Have you had any drugs and alcohol in the last 48 hours?
THE DEFENDANT: No.
THE COURT: Do you understand that you are charged at apparently nine
informations. You are charged with indecent assault at case ending in 977, and it
is alleged that you had indecent contact with I.9111111 S- And that is 11111
5
32a
-· or caused her to have indecent contact with you without her consent.
This is punishable by two years of imprisonment.
You are also charged with a summary of harassment at that information.
At the case ending in 564, you are charged with two counts of indecent assault. In
count one, it is alleged that J.... M is the victim. In count two,
Mii J9IIISIIII is the alleged victim. Each of those are punishable by two
years in jail.
You are charged with one summary of harassment.
-
J.B-~
At the criminal complaint ending in 034, it is alleged that Tmll J
is the victim. Count two alleges
Giii is the victim. Count four,
A9111 M
M
D-
smlll. Count three alleges UIII
is the victim. Count five is
is the victim. And count six alleges
Each of these are punishable by not more than two years of imprisonment.
You are also charged with six summary counts of harassment with the alleged
victims being the same.
And at the case ending in 032, E G9IIIII
is the victim.
That is punishable by two years of imprisonment. As well as a summary count of
harassment.
At the criminal complaint ending in 031, count one alleges Diii ~
- is the victim. Count two alleges Rlmlll T-is the victim. Count
three, J8 is the victim. Each of those are punishable
M.
by two years. And there are three corresponding counts of harassment.
At the criminal complaint ending in 833, it is alleged that J.S
- is the victim. That is punishable by two years of imprisonment and one
corresponding count of harassment.
At the criminal complaint ending in 600, it is alleged that tmllll H-is
the victim.
And at the case ending in 424, it is alleged that f911F-is the victim. -
..... And there is one corresponding count of harassment.
6
33a
At the criminal complaint ending in 583, count one alleges C9I wa is the
victim. Count two alleges ~ ~ is the victim. Count three alleges
Liit ~ as the victim. Count four alleges that Giii JIIII-
S is the victim. This is punishable by two years of
imprisonment. There are four corresponding counts of summary harassment.
THE COURT: I added those wrong.
MS. DiGIOVANNI: I believe it's two -
MR. LEVENSON: Two for each victim.
MS. DiGIOVANNI: There have been 18 victims, so 18 counts of indecent
assault.
THE COURT: Most, excluding the summaries, are punishable by a maximum
term of imprisonment not to exceed 36 years. That's when you add them all
together and they run back to back. Okay.
THE DEFENDANT: All right.
THE COURT: Do you understand that you have the absolute right to have a trial
by jury, and you have decided to waive that and proceed in a non-jury trial, is that
correct?
THE DEFENDANT: That is correct.
THE COURT: And to that end, you have read the waiver of jury trial form, which
I will accept.
Has anybody promise you anything or threatened you in any way that may have
influenced your decision?
THE DEFENDANT: No.
THE COURT: I will accept the waiver.
(Trial Transcript, p. 3-7), emphasis added.
"When the court is sitting as fact-finder, it is presumed that inadmissible evidence is
disregarded and that only relevant and competent evidence is considered ... In a non-jury trial,
7
34a
the court rs presumed to have disregarded evidence too prejudicial to be considered by a jury,
thus assuming that the court in a bench trial would follow the very instructions which it would
otherwise give to a jury." Cemmonwealth y. Gonzales, 609 A.2d 1368, 13 71 (Pa.Super. 1992).
See also Qonunonwealth. v. Fears, 86 A.3d 795, 819 (Pa. 2014).
It is clear that the Defendant and his counsel hold this Court in very low regard, as
evidenced by his claim on direct appeal that this Court misrepresented the evidence (which the
Superior Court found to be without merit) and also by this claim, wherein he alleges that this
Court was so prejudiced by Mr. Levenson's single reference to "victims" that it was unable to
listen to the evidence and render a fair verdict based on that evidence, leading to the
aforementioned "complete breakdown in the adversarial process." This Court is incredulous that
defense counsel would challenge this Court's judgment and fairness in such a manner and again,
this reflects on the merits of the Concise Statement as a whole. To the extent that it is even
necessary to state, Mr. Leveson 's single use of the word "victims" during the jury trial waiver did
not prejudice this Court, did not lead this Court to pre-judge the merits of the case, nor did it lead
to a "complete breakdown in the adversarial process." This claim is utterly without merit.
4. Unlawful Inducement of Jury Trial Waiver
Next, the Defendant argues that his waiver of jury trial was unJawfully induced by trial
counsel, who "misled" him regarding his chances of success.
It is well-established that in order to be valid, "a jury waiver must be knowing and
voluntary, and the accused must be aware of the essential ingredients inherent to a jury trial... (I)
that the jury be chosen form members of the community (i.e., a jury of one's peers), (2) that the
accused be allowed to participate in the selection of the jury panel, and (3) that the verdict be
8
35a
.
unanimous." ~mmdn~eaJth v. Houck, 948 A.2d 780, 787 (Pa. 2008), intcrnaJ citations omitted.
"It is the defendant's burden ... to establish that a jury waiver is invalid." ld. at 788.
Here, the Defendant does not point to any evidence which demonstrates that he was
unaware of the rights he was waiving. He claims, essentially, that defense counsel led him to
believe that the verdict would be not guilty in a bench trial. This Court, being familiar with Mr.
Leveson 's work experience and reputation, simply cannot beJieve that Mr. Levenson would have
promised an acquittal in a non-jury triaJ. The Defendant's unhappiness with the verdicts is clear,
but that unhappiness does not render his jury triaJ waiver invalid. The Defendant filled out a
written waiver form and engaged in an oral colloquy with this Court, reproduced above. Much
as a criminal defendant who pleads guilty is bound by the statements made during the colloquy
and "may not assert grounds for withdrawing the plea that contradict the statements made when
he pled," Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.Super. 1999), the Defendant is
bound by his own statements during the jury trial waiver colloquy, wherein he indicated that he
had not been promised anything to influence his decision. The Defendant cannot now claim that
counsel induced his jury trial waiver by promising a not-guilty verdict. This claim is meritless.
5. Failure to Call Exculpatory Witnesses
The Defendant has raised 11 separate claims that counsel failed to call various witnesses,
whom he deems "exculpatory". They are: Physician Assistants Kelly Hefner, Allison Karan and
Natalie Cresenze, who between them account for 8 of the claims; Office Manager Margaret
Slagel; and five (5) patients who submitted letters on his behalf, three (3) of whom did actually
testify at trial.
9
36a
As it specifically relates to a claim for ineffectiveness for the failure to call a witness, the
petitioner must establish that "(I) 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." ConU11onweaJth v. Matias, 63 A.
3d 807, 810-811 (Pa.Super. 2013). "Failure to call a witness is not per se ineffective assistance
of counsel, for such a decision implicates matters of trial strategy. lt is [the petitioner's] burden
to demonstrate that trial counsel had no reasonable basis for declining to call [a particular
person] as a witness 'Generally, where matters of strategy and tactics are concerned, counsel's
assistance is deemed constitutionally effective if he chose a particular course that had some
reasonable basis designed to effectuate bis client's interests.' A claim of ineffectiveness
generally cannot succeed through comparing, in hindsight, the trial strategy employed with
alternatives not pursued." Commonwealth Y, Hammond, 953 A.2d 544, 558 (Pa.Super. 2008),
emphasis added.
With regard to the claims relating to Physician Assistants Kelly Hefner, Allison Karan
and Natalie Cresenze, the Defendant now asserts that on various visits of patients CIIII wa
(PA Kelly Hefner), R... C- (PA Allison Karan), B .. S-, f9IIII Fml,
J- and J.. M. (PA Natalie Crcsenze),as well as L- H•• and U..
Giii (both PA Allison Karan and PA Natalie Cresenze), the Physician Assistants would have
testified that they were the principal examiners of the patients and that the Defendant either did
not examine them at all or merely made a perfunctory visits with an abbreviated exam or none at
all.
10
37a
At trial, the Defendant testified regarding his typical practice and procedures and how he
utilized the Physician's Assistants:
Q. (Mr. I evenson): And what was the job of the physician assistant?
A. (The Defendant): They were our right hand. They work with us. We
were a team. And they would see stable patients. And they would se most
of the new patients by themselves, and then come out and present those
patients to one of the doctors, who would then go in and see the patient ...
Q. Before seeing her did anyone else in your office see her first?
A. Yes.
Q. \Vho?
A. Our relatively new physician assistant, Allison.
Q. And why was that?
A. Because that's the way we typically ran new patients. To have the
physician assistant see them first. Refer with us and review the history
and physical exam findings. And at this point, because she was working
with us, have her come up with a treatment plan so that Icould teach her
as we went in together as a team then to evaluate the patient.
(TT. pp. 343, 367-368).
On direct examination, the Defendant testified that he saw the various patients both alone
and with a Physician Assistant. Regarding C.. w•:
Q. (Mr. Levenson): Approximately how many times did you see .. West?
A. (The Defendant): Five times that we saw her in the office. Two of those
were with myself alone and three of those were with Kelly and myself.
(T. T. p. 392).
Regarding R C-:
Q. (Mr. Levenson): And was your physician assistant in the room while you
conducted this physical examination of .. c::8111?
11
3Sa
A. (The Defendant): Not only was she in the room, she was watching my
technique. She was a relatively new physician assistant and 1 was
teaching her points as we went along.
(T.T. p. 369).
Q. (Mr. Levenson): Dr. Tyma, was B9I S- a patient of yours?
A. (The Defendant): Yes.
Q. And how many times did you see her?
A. I saw her three times.
Q. What did you see her for?
A. She was referred to us because of whole body pain and possibly Lupus.
She was looking for a second opinion after seeing another rheumatologist.
Q. How many times did you see her alone?
A. Twice.
(T.T. p. 380).
Q.
A.
(Mr. Levenson): Dr. Tyma was
(The Defendant): Yes.
F- F- a patient of yours?
Q. How many times did you see ... F-?
A. I saw her three times. Once with Natalie, the physician assistant, as the
last patient was, and then twice alone.
(T.T. p. 382).
Regarding
Q.
T-1111111:
(Mr. Levenson): Was W J. a patient of yours?
12
39a
A. (The Defendant): Yes.
Q. And how many times did you see her? Would it have been two times?
A. Yes.
Q. How many times did you see her alone?
A. Once. Second visit. First visit with Natalie.
(T.T. p. 386).
Regarding 11119 M•:
Q. (Mr. Levenson): Was J.. M. a patient of yours?
A. (The Defendant): Yes, she was.
Q. When did you first see her?
A. I began seeing her at UPMC Passavant Hospital, with initial consultation
on August 30 of 2008, for severe joint and muscle pain, which is what she
was admitted to the hospital with.
Q. And what happened during that initial visit with .. M8?
A. I did a full consultative history and physical examination, including a heart
examination.
Q. And how many times did you see her after that initial examination?
A. I saw her two more times while in the hospital ... My physician assent then
saw her and we saw her for five more visits.
(T.T. p. 356, 358).
Regarding L- H-:
Q. (Mr. Levenson): Is L-H- a patient of yours?
A. (The Defendant): Yes.
13
40a
Q. Where did
you see Ill H-?
A. It began seeing her at Passavant Hospital only. I never saw her in the
office.
Q.
U-
(T.T. p. 387); and
Regarding G-:
(Mr. Levenson): Was U·G-apaticnt of ours [sic]?
A. (The Defendant): Yes, she was.
Q. And how many times did you see .. G.?
A. I personally saw her at least 22 times. And there may have been more than
that.
(TT. p. 370).
The record also reflects that, with the exception of~ cmll, all of the women
testified that the touchings occurred when they were alone with Dr. Tyma:
Q. (Ms. DiGiovanni): Were there any times that you were alone with Dr.
Tyma?
A. CCIII w•): Yes.
Q. Were you alone with Dr. Tyma for one of the physicians one time or more
than one time?
A. One time.
Q. And can you tell me what happened during that exam when you were
alone with Dr. Tyma?
A. Yes. l was in the room sitting on the edge and he came in by himself and
asked how I was doing. I do remember him checking my neck, both sides.
He asked me then to lie back on the examination table. I was fully
14
41a
clothed. At that point, he took his right hand inside my blouse and
covered my left breast.
(T. T. p. 27).
Q. (Ms. DiGiovanni): Did anyone take a history or talk to you about the
nature of your illness at all?
A. (B- S-): Yeah. I think she did it then. I filled out the
paperwork, then she just kind of reviewed it real quick.
Q. Now, at some point did Dr. Tyma come into the room?
A. Yes.
Q. When Dr. Tyma came into the room, was anyone else with you besides
you and Dr. Tyma?
A. No.
(T.T. p. 66).
Q. (Ms. Di Giovanni): When you first met Dr. Tyma for the very first time,
were you in an exam room?
Q. Was Dr. Tyma in there just by himself with you or was there anyone else
present?
A. Myself.
Q. During the initial meeting, did you describe for Dr. Tyma your symptoms
and why it was you came to see him?
A. Yes, ma'am.
Q. And Dr. Tyma performed a physical exam?
A. Yes.
Q. Please tell us the details how that physical exam went.
15
42a
A. He had me stand. And he checked my hips. He had me sit on the bed. He
checked my heart and stuff. And then he had me lay back and he had me
pull up my sweater. l had on an under wire bra that day and when my left
arm came up, my breast was exposed. He then proceeded to put his left
hand here and he come down, he put his left hand on my right shoulder.
He put his right hand on my left breast. He came down and then he
brought his other hand down. It was swiped. His left hand here and
swiped down by my pelvic area.
(T.T. p. 110-111).
Q. (Ms. Di Giovanni): But you went to another location for the lab work, is
that correct?
A. (T.. J.. ): Yes.
Q. Did you then have further contact with Dr. Tyma?
A. After the lab work, I was taken to another room, a different room, and then
I waited until he came in there.
Q. When you say he, you mean Dr. Tyma?
A. Yes.
Q. When Dr. Tyma came into this third room, were you and he alone
together?
A. Yes.
Q. Was the door open or closed, do you recall?
A. Closed.
Q. And while you and Dr. Tyma were alone in that third room, can you tell
me exactly what happened in that room?
A. Ifs been so long ago, but 1 mean, we discussed the lab work and I mean,
just discussed my condition and then he continued with his exam.
Q. When you say continued with his exam, what exactly did Dr. Tyma do?
16
43a
A. I was on, I guess the bed, the thing that he had in there to lie back on. And
he was asking me questions and standing in front of me and looking at me.
And then somewhere along the line, he just grabbed my breast and just
kind of massaged it and then stopped and turned his back to me and just
left me there.
Q. When you say he grabbed your breast, which breast?
A. My left breast.
Q. And you said grabbed and massaged, is that correct?
A. Right.
(T.T. p. 206-207).
Q. (Ms. DiGiovanni): When you went to that first visit, did you have an
appointment specifically with Dr. Tyma?
A (Jiii Ma): Yes.
Q. And can you tell me when you went to the Wexford office, were you taken
into the exam room?
A. Yes.
Q. Did you meet with any other personal that day other than Dr. Tyma?
A. No.
Q. So when Dr. Tyma came to the exam room, were you and he alone in the
room?
A. Yes.
Q. Was the exam door open or closed?
A. Closed ...
. .. Q. Did Dr. Tyma perform any further physical exam beyond your hands?
A. Yes.
17
44a
Q. What else happened?
A. He had me lie back on the table. He listened to my heart beat with the
stethoscope. And then he took the stethoscope and put it around his neck
and proceeded to lift my shirt and lifted my bra and started to rub my
breast.
(TT. p. 220-221 ).
Q. (Ms. DiGiovanni): At some point when Dr. Tyma was in your hospital
room, did anything you found to be inappropriate happen?
A. (L .. H-): Yes. I don't know what number was the third or fourth
time, but before his last visit, he did touch me inappropriately on my
breasts.
Q. Was this the time right before the last visit?
A Yes, ma'am.
Q. Again, when Dr. Tyma came in the room, was the curtain closed?
A. Yes, ma'am.
Q. Explain for me exactly what happened during that visit.
A It started out as all the other physicals would start out. Again, he would
look at my legs for any kind of swelling. At that time, I had dermatitis. A
skin breakout on my arms and along my collar bone and the back of my
neck. After looking at my legs and talking to me, he wanted to check my
skin, which I also had been counseled through with a dermatologist. So he
wanted to check and see how my skin had been doing. So, I was wearing
a gown and he looked at my skin, looked at my collar bone. And as he
was kind of leading over me and as he went to go stand up, he grabbed my
left breast. It was very quickly.
(T.T. p. 143-144).
Q. (Ms. DiGiovanni): At any point in time, .. G- did anything happen
during any exams with Dr. Tyma that you found to be inappropriate?
A (U.GIII): Yes.
18
45a
Q. How many times did something happen that was inappropriate?
A. All together, two times.
Q. Two times?
A. Yes.
Q. Do you recall the first time?
A. I do. And when it happened, I dismissed it as an accident because
accidents do happen.
Q. So, the first time that something happened, can you describe for me
initially tell me were you in the room alone with Dr. Tyma or was
someone else in the room?
A. Alone.
Q. And describe for me exactly what happened during this first occasion.
A. Well, it was the first time, 1 mean he took his stethoscope and was
listening to my heart and at the same time, he bad his fingers around my
breasts. Not the bare breast. Talking about the bra ...
Q. And did another incident happen that you found to be inappropriate?
A. Yes.
Q. Were you alone with Dr. Tyma?
A. Yes.
Q. Was the examination room door open or closed?
A. Closed.
Q. Can you describe for me the second incident exactly what happened?
A. 0 kay. he did the same thing. He listened to my heart and 1 was laying on
the exam table. And he had the stethoscope in his hand and while be was
listening, he adjusted his hand. I will have to show you. Okay. Because it
went like this and then his whole entire hand was over my breast.
19
46a
(T. T. pp. l 54, 156- l 57).
R-C- testified that though a Physician Assistant was in the room, she was not
paying attention to what was occurring:
Q. C"'1s. DiGiovanni): At that point in time, after you had this discussion with
Dr. Tyma, he performed a physical exam on you?
Q. Can you tell me as best you can how the physical exam progressed.
A. First, they had me undress down to a robe. And like I said, the pain was
all in the neck and the jaw, but he proceeded to touch in other areas that
were not a bother. And I did say before the exam even started, my body
hurts except my butt area. But he proceeded to touch my body, grope both
of my breasts, put his hand down my back side and touch my butt. And
asked if I had any pain in the butt area or the breast area and my inner
thigh area. And I told him no. Those were none of the areas of pain.
That's not what I'm here for. I don't have pain in those areas ...
... Q. How long were you in the exam room before someone came in?
A. There was actually a woman the whole time with me writing down notes.
But I concentrated on her and she never picked her head up.
(T.T. pp. 38, 41).
The entire point of an exculpatory witness is to exculpate - that is, to prove that the
defendant did not do what he is accused of. However, a person who was not present at the time
of the incident(s) can only establish that they did not witness the incident, not that it did not
occur. As noted above, all of the women identified regarding this issue, with the exception of
R- ~ testified that they were alone with Dr. Tyma when the touchings occurred, and
Dr. Tyma admitted that he did see each of these women by himself at various times. Therefore,
testimony of three (3) Physician's Assistants, who would presumably have only testified that
20
I
47a
I
nothing inappropriate occurred when they were in the room, is essentially meaningless. Unless
the Defendant can prove that he was accompanied by one of these Physician's Assistants every
single time he saw a patient and he was never alone with any patient - which he has admitted is
not the case - then their testimony is not exculpatory and in fact, not even relevant to the charges.
A similar scenario ensues with the proposed testimony of Office Manager Margaret
Slagel. The Defendant now asserts that she would testify that she never heard any compJaints of
inappropriate behavior from the Defendant's patients. Again, unless the Defendant can prove
that Ms. Slagel was present with the Defendant for every single patient interaction, her testimony
is similarly not relevant.
In Commonwealth v. Heilman, 867 A.2d 542 (Pa.Super. 2005), our Superior Court held
•
that "an absence of evidence is not evidence of absence." Commonwealth v. Heilman, 867 A.
2d 542 ( Pa.Super. 2005). emphasis added. The fact that the Physicians Assistants and Office
Manager did not witness or hear reports of any inappropriate conduct does not mean that the
conduct did not occur - and in fact the sufficiency and weight of the evidence have already been
upheld by our Superior Court on the direct appeal of this matter. Because the proposed
testimony of Physician Assistants Kelly Hefner, Allison Karan and Natalie Cresenze and Office
Manager Margaret Slagel would not have established any material facts or reasonable inferences
regarding any material facts or made any facts at issue more or less probable, see
Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998), their testimony was not relevant and
counsel was not ineffective for failing to present it.
M. M-
Similarly, the Defendant argues that counsel was ineffective for failing to present the
testimony of five (5) patients, P- H••• 191 GIII-L., R9IIII
21
48a
R9 and Lii Liii who would have testified that the Defendant did not touch them
L.
four (4) of these women - Mii M9, L.
inappropriately and that touching the breast was necessary for the exam. This Court notes that
G--LII,
did testify as character witnesses on the Defendant's behalf.
~ Riii and 1111
To the extent that the
Defendant is attempting to extrapolate a claim of innocence of all claims because he was able to
identify five (5) patients whom he did not assault, this claim is meritless. Simply because the
Defendant did not assault the five (5) women named did not mean that he did not assault the
complainants in these matters and their testimony would not provide a basis for an acquittal.
Moreover, as to the claim that these women would testify that touching the breast is necessary
for a full examination, the Defendant presented expert testimony to that effect which this Court
considered before reaching its verdict and which the Superior Court also reviewed when
upholding the weight and sufficiency of the evidence on direct appeal. Although these patients
may have been able to testify as to how the Defendant examined them - which actually does not
have any bearing on whether he touched the victims in the cases - certainly these patients are not
medical experts and are not qualified to give expert testimony on how an exam should be
conducted. The Defendant cannot have it both ways. Any substantive testimony regarding their
own treatment with the Defendant was not relevant to the allegations in this case and so counsel
was not ineffective for failing to present it. This claim is meritless.
6. Failure to Impeach Witnesses
Next, the Defendant argues that counsel was ineffective for failing to impeach several of
the victims with prior convictions, information from their medical records and, in one
22
~a
incomprehensible claim, with the fact that L9
of her examinations. These claims are meritless.
H- had a fever of 103 degrees during one
Although "evidence of a witness's conviction for a crime involving dishonesty or a fake
statement is generally admissible", counsel's failure to introduce that evidence is not per se
ineffectiveness if there is a "reasonable strategic basis for not impeaching". Commonwealth v.
Small, 980 A.2d 549, 565-66 (Pa. 2009). However, "a witness may not be contradicted on
'collateral' matters, and a collateral matter is one which has no relationship to the case at trial."
Commonwealth v. Saunders, 946 A.2d 776, 786 (Pa.Super. 2008). "The pivotal issues in a trial
cannot be 'side-tracked' for the determination of whether or not a witness lied in making a
statement about something which has no relationship to the case on trial. The purpose of trials is
not to determine the ratings of witnesses for general veracity. A witness can be contradicted only
on matters germane to the issue trying. There is no rule more firmly established than this."
Co,mmonwealth v. Petri 110, 19 A.2d 288, 295 (Pa. 1941 ).
A-
The Defendant now argues that ~
M..
C-, EIIII G- Diii
should have been impeached with their prior convictions for bad checks
Mlll9 and
(D- MIIII and Emil G9t), retail theft (~ C- and A9I M-),
disorderly conduct (R- C-
A careful review of the record reveals that E. G-
and A-MIIII) and harassment (R- C-).
was impeached with her prior
convictions during cross-examination (See Trial Transcript, p. 63), however, the remaining
convictions were not mentioned.
This Court, which was sitting as the fact-finder in this matter, can say with certainty that
even had the impeachment evidence been introduced, the result would not have been different.
23
50a
The existence of a prior conviction does not mean that a person cannot be victimized or that her
testimony regarding that victimization is not believable ab initio, In its capacity as fact-finder,
this Court listened to the victims' testimony and made determinations regarding that testimony.
The existence of the impeachment evidence, though not pursued by counsel, would not have
changed this Court's findings, and so, necessarily, counsel was not ineffective in failing to
present it.
Additionally, the Defendant argues that several of the victims should have been
"impeached" with various items in their medical records including whether they left the office
immediately after the assaults or stopped to schedule a follow-up appointment, that they had
symptoms of depression or mental illness in the past, that they received pain medication from
other physicians, that they called him after an assault with a question about vitamins and in the
most incredible of all claims, that counsel failed "to introduce evidence that L.H. -
- had a fever of 103 degrees at the time she claims Petitioner had 'grabbed' her breast
for one second while standing up from examining a rash on her left arm and shoulder and
collarbone" (Petitioner's Concise Statement of Matters Complained of on Appeal, p. 13-14).
Whether the victims failed to immediately flee the office after being assaulted or whether
they called him to ask about vitamins or whether they had prior symptoms of depression or even
a fever, is irrelevant to the claims at issue in trial, namely whether they were assaulted or not. As
such, all of these various matters would have been considered impeachment on a collateral
matter and would not have been permitted. Therefore, counsel was not ineffective for failing to
attempt it. This claim is meritJess.
24
51a
Also within the ambit of impeachment evidence, the Defendant now claims that counsel
was ineffective for failing to impeach all of the victims with their "demeanor" in his office, at the
preliminary hearing and in the Courthouse hallways. He makes no specific claims of
misconduct, save to say that there was "a plethora of demeanor impeachment evidence showing
the complainants (who were not victims) in a true light had no reasonable basis." (Petitioner's
Concise Statement of Matters Complained of on Appeal, p. 21 ).
It is clear that the Defend ant views his victims as less - less worthy than others, less
worthy of belief, certainly less than himself For a criminal defendant to say that a victim's
demeanor in his office or at a preliminary hearing or in the Courthouse hallway - without
pointing to any specific instance - is proof that she is lying is, by any measure, incomprehensible
to this Court. This Court would not have admitted such nonspecific and baseless evidence, and
so counsel was not ineffective for failing to attempt it. This claim is meritless.
7. Failure to Present Evidence
Next, the Defendant also argues that counsel was ineffective for failing to introduce
illustrations from a medical textbook showing a cardiac exam and a list provided by the
Defendant to trial counsel indicating that he wanted R- C- to be a character witness.
His claims are meritless.
Regarding the illustrations from a medical textbook, the Defendant claims that these
would demonstrate "that a proper cardiac examination requires the physician to have contact
with the woman's breast" (Petitioner's Concise Statement of Matters Complained of on Appeal,
p. 20). However, at trial, the Defendant presented the expert testimony of Dr. Emilio Gonzales
and Dr. Chester Oddis, both of whom testified that it is necessary to touch the breast during a
25
52a
cardiac examination. (See T. T., p. 282, 301 ). Any illustrations from a medical textbook would
have been cumulative of that expert testimony and therefore not necessary, and so counsel was
not ineffective in failing to introduce them. Again, this claim must fail.
The Defendant also avers that trial counsel was ineffective "for failing to introduce
evidence that, in preparing his defense Petitioner included L.R. in the list of
patients to whom he sent a letter asking them to be character witnesses for him." (Petitioner's
Concise Statement of Matters Complained of on Appeal, p. 18). According to the Defendant, the
letter "shows Petitioner's state of mind, and establishes that he did nothing wrong with respect to
is simply meritless. Whether or not the Defendant wanted R.
L.R. ". (Petitioner's Concise Statement of Matters Complained of on Appeal, p. 18). This claim
11/1 to be a character witness
(presumably before her charges were filed, though the Concise Statement does not specify) has
no bearing on the merits of the case. Said another way, the Defendant is not entitled to an
acquittal simply because he included one victim's name on a list of potential character witnesses.
already testified that his touching of L. R.
If this were the case, certainly every criminal defendant would do the same. The Defendant
was part of his medical examination and it was
not necessary to introduce the list to establish his "state of mind". There is no basis for a claim
of ineffectiveness here. This claim must fail.
8. Failure to Subpoena Records
L- S- and M.
The Defendant also argues that trial counsel failed to subpoena the medical records of
111 S•. Again, these claims are meritless.
Regarding the records of~ S-, the Defendant argues that their counsel was
ineffective for failing to subpoena "medical charts and progress notes" from Jameson Hospital in
26
53a
New Castle. At trial, Ms. S- testified that she saw the Defendant on one occasion at an
appointment which took place at the hospital; the Defendant did not see her as an inpatient. As
such, those records should already have been under the Defendant's control. Moreover, the
purpose for which the Defendant requests the chart - to prove "that the patient had to be lying
down in order for Dr. Tyma to conduct his examination thus controverting L.S. 's trial testimony
that she never laid down during the examination in question" and that "Dr. Tyma recommended a
follow-up appointment which would have required the patient to call the Wexford office to make
the appointment and would have controverted her trial testimony that she made the appointment
at the hospital the day of the exam in question." (Petitioner's Concise Statement of Matters
Complained of on Appeal, p. 10-12). As with issue 6, above, this would constitute impeachment
on a collateral matter and would thus be improper. Moreover, as this Court pointed out at the
conclusion of trial, the Defendant's medical records are unlikely to contain any unfavorable
information:
THE COURT: I would point out that I would guess that assuming you had
touched these women inappropriately, you would not have made that a part of
your hospital records and said, and then I was done, I grabbed her left breast. I
don't know this would have been a part of your notes.
(T. T. p. 409).
Insofar as the Defendant wrote his own records, the absence of any indication that the
patients were touched inappropriately does not mean that the touching did not occur. See
Heilman, supra ("an absence of evidence is not evidence of absence"). Even had defense
counsel subpoenaed the Jameson Hospital records, the result of the trial would not have changed,
and so counsel will not be found ineffective in this regard.
27
54a
The Defendant also argued that counsel was ineffective for failing to "obtain the medical
chart of M.J.S. before trial." (Petitioner's Concise Statement of Matters
Complained of on Appeal, p. 19). The Defendant does not specify which provider(s) whose
records he was seeking and, in perhaps the most offensive claim of this Concise Statement, states
that the reason for needing Ms. S.'s other records is that "because the medical charts of the
other complainants contained a 'gold mine' of impeachment evidence, one would expect to find
the same with M.J.S. 's chart." (Petitioner's Concise Statement of Matters Complained of on
Appeal, p. 19).
Essentially what the Defendant is saying is that because other women's medical records
contained
questionable,
impeachment
see above), Mir J.
evidence (though whether it is true impeachment
S.'s medical records must necessarily also contain
impeachment evidence. This is not a sufficient basis, but is rather an offensive generalization
evidence is
among victims. Having already exhibited his disdain for the women (see No. 6, above, regarding
"demeanor impeachment evidence"), the Defendant simply assumes that because some of the
women had criminal convictions or histories of depression, then they all must have. This is
highly improper and is in no way a basis for a claim of ineffectiveness. This claim is utterly
meritless.
9. Ineffectiveness in Closing Argument
Next, the Defendant challenges counsel's closing argument for his failures to address
each victim individually and to make an argument regarding the harassment charges. He avers
that had counsel done both, the result would have been different. This Court can assure the
appellate court that it would not have been.
28
SSa
At the conclusion of trial, defense counsel presented a cogent and thoughtful closing
argument, wherein he summarized the charges, discussed reasons why the claims were not
credible and also fairly extensively argued that the women were not credible. In this Court's
view, defense counsel's argument was entirely appropriate and not lacking in any way. Sitting as
the fact-finder, this Court can say with certainty that even had counsel addressed each victim
individually or made an argument regarding the summary harassment charges, the result would
not have been different. As our Superior Court has already determined, the evidence was more
than sufficient to support the convictions, and a different or perhaps more detailed closing
argument would not have changed that fact. This was not a case where the evidence was
questionable or that this Court was somehow "on the fence", such that the closing argument
would have persuaded it one way or another. Rather, the evidence was clear and more than
sufficient. Counsel's closing argument was appropriate and in no way gave rise to a finding of
ineffectiveness. This claim must fail.
JO. Cumulative Ineffectiveness
Finally, the Defendant argues that all of his ineffectiveness claims "individually and
cumulatively entitle [him] to relief" (Petitioner's Concise Statement of Matters Complained of
on Appeal, p. 22). Once again, this claim is meritJess.
At the beginning of this Opinion, this Court referenced a Jaw review article by Judge
Aldisert of the Third Circuit, wherein he hypothesized that even when reversible error is found,
there are usually not more than one or two errors made and, to paraphrase, that raising more
issues does not necessarily mean more errors will be found. l lere, the Defendant raised 29
separate claims of ineffectiveness, and though some warranted extensive discussion from this
29
56a
Court, some of them were so spurious that they clearly should not have been raised. Simply
listing claim after claim after claim when there is no reasonable basis to support a finding that
the verdict would have been different does not amount to ineffectiveness and, similarly, counsel
will not be found even more ineffective when multiple claims are raised. It is understandable that
the Defendant and his family were upset by the verdicts, however, the mere fact that the verdicts
were guilty does not mean that counsel was ineffective. To the contrary, this Court felt that Mr.
Levenson was obviously well-prepared for trial, that he engaged in effective witness
examinations, both on direct and cross-examination, that he made appropriate and effective
arguments and, ultimately, that he presented the best defense he could with the facts he was
given. As discussed above, there was no basis for a finding of ineffectiveness on any of the
specific allegations, nor is there a basis for a finding of cumulative ineffective assistance. This
claim must also fail.
Accordingly, for the above reasons of fact and law, this Court's Order of June 25, 2015,
which dismissed the Defendant's Post Conviction Relief Act Petition without a hearing, must be
affirmed.
Dated: May 12, 2016
30
57a