Com. v. Rosario, F.

J-S19021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

FERNANDO ROSARIO :

:

Appellant : No. 2532 EDA 2021

Appeal from the PCRA Order Entered November 5, 2021

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0000512-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

FERNANDO ROSARIO :

:

Appellant : No. 2534 EDA 2021

Appeal from the PCRA Order Entered November 5, 2021

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0002943-2015

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 6, 2022

Appellant, Fernando Rosario, appeals from the order entered November

5, 2021, dismissing his petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”).1 We affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. § 9541-9546

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Following a multi-day jury trial, Appellant was convicted of involuntary

deviate sexual intercourse, rape by forcible compulsion, aggravated indecent

assault, aggravated assault, sexual assault, terroristic threats, simple assault,

recklessly endangering another person, and false imprisonment 2 for multiple

incidents involving his former girlfriend, C.T. He was sentenced to 10 to 20

years imprisonment on June 1, 2016. Throughout his trial and sentencing,

Appellant was represented by the same attorney (hereinafter “trial counsel”).

After having his post-sentence and appellate rights reinstated nunc pro

tunc, Appellant, represented by another attorney, filed a post-sentence

motion on November 7, 2016. After a hearing, the trial court denied

Appellant’s post-sentence motion on January 25, 2017. Appellant did not file

a direct appeal. PCRA Court Opinion, 2/7/22, at 2-3.

Instead, Appellant, through counsel, filed the instant PCRA petition on

February 23, 2018. The PCRA court held a hearing on May 10, 2019,

addressing both the timeliness of Appellant’s petition and the underlying

merits of his claims. On November 25, 2019, the PCRA court dismissed the

petition as untimely without conducting a merits analysis. This Court reversed

the dismissal order on June 8, 2021, and remanded the case for a decision on

the merits. See Commonwealth v. Rosario, 258 A.3d 504 (Pa. Super.

2021) (unpublished memorandum). After subsequent briefing, the PCRA

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2 18 Pa.C.S.A. §§ 3123(a)(1), 3121(a)(2), 3125(a)(1)-(3), 2702(a)(1),

3124.1, 2706(a)(1), 2701(a)(1), 2705, and 2903(a), respectively.

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court again dismissed Appellant’s PCRA petition on November 5, 2021. This

appeal followed.3

Appellant raises the following issues for our review:

I. Was trial counsel ineffective for failure to obtain and introduce

Appellant’s medical records?

II. Was trial counsel ineffective for allowing the sexual assault

expert to give an opinion on the credibility of a rape victim?

III. Was trial counsel ineffective for allowing the protection from

abuse (PFA) order to be entered into evidence without objection?

IV. Was trial counsel ineffective by allowing evidence of

Appellant’s prior history to be admitted?

Appellant’s Brief at 3 (extraneous capitalization omitted) (reordered for ease

of disposition).

Our standard of review for challenges to the denial and dismissal of

petitions filed pursuant to the PCRA is well-settled.

We must determine whether the findings of the PCRA court are

supported by the record and whether the court's legal conclusions

are free from error. The findings of the PCRA court and the

evidence of record are viewed in a light most favorable to the

prevailing party. The PCRA court's credibility determinations,

when supported by the record, are binding; however, this [C]ourt

applies a de novo standard of review to the PCRA court's legal

conclusions. We must keep in mind that the petitioner has the

burden of persuading this Court that the PCRA court erred and

that such error requires relief. Finally, this Court may affirm a

valid judgment or order for any reason appearing of record.

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3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations

omitted).

Appellant’s claims allege ineffective assistance of trial counsel.

Counsel is presumed to be effective, and the petitioner bears the

burden of proving that counsel's assistance was ineffective by a

preponderance of the evidence. To prevail on a claim of

ineffective assistance of counsel, the petitioner must plead and

prove the following three elements: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his or her

action or inaction; and (3) petitioner suffered prejudice as a result

of counsel's action or inaction. To establish prejudice, the

petitioner must show that there is a reasonable probability that

the outcome of the proceedings would have been different but for

counsel's action or inaction. Because a petitioner's failure to

satisfy any of the above-mentioned elements is dispositive of the

entire claim, a court need not analyze the elements in any

particular order. Failure to satisfy one element is dipositive.

Commonwealth v. Hairston, 249 A.3d 1046, 1061–1062 (Pa. 2021)

(internal citations omitted). We further explained:

A claim has arguable merit where the factual averments, if

accurate, could establish [grounds] for relief. See

Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) (“if a

petitioner raises allegations, which, even if accepted as true, do

not establish the underlying claim . . . , he or she will have failed

to establish the arguable merit prong related to the claim”).

Whether the facts rise to the level of arguable merit is a legal

determination.

The test for deciding whether counsel had a reasonable basis for

his action or inaction is whether no competent counsel would have

chosen that action or inaction, or, the alternative, not chosen,

offered a significantly greater potential chance of success.

Counsel’s decisions will be considered reasonable if they

effectuated his client's interests. We do not employ a hindsight

analysis in comparing trial counsel's actions with other efforts he

may have taken.

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Prejudice is established if there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

quotations and citations omitted).

In his first claim, Appellant argues that trial counsel was ineffective for

failing to obtain or introduce Appellant’s medical records regarding injuries he

sustained from C.T. Appellant’s Brief at 9. By way of background, the PCRA

court explained, “[o]n the evening of January 4, 2015, [Appellant] held a knife

to [C.T.’s] throat. In response to [Appellant’s] actions, [C.T.] threw hot oil on

Appellant, for which he sought medical care at Bryn Mawr Hospital.” PCRA

Court Opinion, 2/7/22, at 5 (record citation omitted). Appellant received

additional treatment while at the Montgomery County Correctional Facility.

N.T. PCRA Hearing, 5/10/19, at 14. Appellant argues that the case “basically

came down to she said/he said issue[s] with regard to the rape,” and

introducing the medical records bolstered Appellant’s testimony. Appellant’s

Brief at 10. Appellant further asserts that, while the medical evidence was

not contested at trial, the Commonwealth “made out that [Appellant] was a

manipulator and liar[,] and his testimony could not be trusted.” Id. at 11

(record citation omitted). Thus, the medical records would support the

truthfulness in his testimony at trial. Id. Appellant concludes that he was

prejudiced by trial counsel’s failure to introduce the medical records because

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it “probably effected the outcome of the proceedings against the Appellant.”

Id.

At the May 10, 2019 PCRA hearing, trial counsel testified that because

no one disputed that C.T. threw hot oil on Appellant, the medical records had

little probative value but could undermine the defense. N.T. PCRA Hearing,

5/10/19, at 34. Trial counsel explained that, at trial, Appellant’s injuries were

described on “numerous occasions,” including in counsel’s opening statements

and closing arguments, at length in Appellant’s testimony, in testimony from

detectives, and in letters introduced between Appellant and C.T. Id. at 62-

66. When asked why he believed the medical records4 could have undermined

his defense strategy, trial counsel explained:

So the recitation that you just went over [concerning evidence

elicited at trial about Appellant’s injuries] was from letters from

[Appellant] as well as [Appellant’s] testimony[, which,] you

know[,] obviously having to comply with the rules of professional

responsibility[,] that gave me a good faith basis to argue [ ] to

the jury that those injuries to [Appellant] were so severe that it

would have rendered him physically incapable of actually having

any kind of sex, forced or otherwise, on the complainant.

Upon hearing what was read about those medical records, I have

no doubt he was in pain and had burns. I didn’t hear any where

near an explanation that those injuries were as severe[. N]o

where in those medical records does it appear to say that anything

that he would have been physically incapable of ultimately moving

or thrusting himself on the complainant.

____________________________________________

4Trial counsel candidly admitted that he did not obtain any medical records

and only heard of their contents while at the May 10, 2019 PCRA hearing. See

N.T. PCRA Hearing, 5/10/19, at 34-35, 66-67.

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So those medical records would have hamstrung my ability to

make those strong arguments to the jury. I am confident of that.

Id. at 67.

The PCRA court credited trial counsel’s testimony and determined he

had a reasonable basis for his actions. “As stated on the record, trial counsel

wanted his client to be able to present his version regarding his injuries, and

did not want to risk the medical records to dispute his testimony.” PCRA Court

Opinion, 2/7/22, at 5. Upon our review, we find no error in the PCRA court’s

determination, which is supported by the record. Consequently, Appellant’s

first claim fails.

In his second claim of ineffectiveness, Appellant argues that trial counsel

failed to object to certain testimony of the Commonwealth’s sexual assault

expert which purported to bolster the credibility of C.T. Appellant’s Brief at

14. Contextually, the PCRA court explained:

In [its] case in chief[,] the Commonwealth presented testimony

from the sexual assault nurse who met with the victim at the

hospital on the night of the rape. [The nurse] who met with the

victim[ testified at trial and] was also certified as an expert in

sexual assault examination and sexual abuse. On cross

examination of the witness, defense trial counsel questioned her

as to the length of time after arriving at the hospital, and the

number of times she was questioned, before the victim indicated

that [Appellant] had sexually assaulted her. Defense trial counsel

seemingly intended to discredit the victim with this line of

questioning, eliciting information that the victim did not initially

report the assault, and that it was only after repeated questioning

that she mentioned it.

On re-direct[,] the Commonwealth questioned the expert witness

as to whether it was common for a sexual assault victim, not this

specific sexual assault victim, to withhold that she had been

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sexually assaulted at a first interview. The expert indicated that

it is common for a victim to not initially disclose a sexual assault,

indicating that it often takes repeated questioning of the victim

before the victim discloses all of the details.

PCRA Court Opinion, 2/7/22, at 6-7 (record citation and footnote omitted).

Appellant argues that failing to object to the expert’s testimony “totally

undid [trial counsel’s] cross examination questioning her credibility because

of not immediately reporting the sexual abuse.” Id. at 16. He contends that

the holdings of Commonwealth v. Balodis, 747 A.2d 341 (Pa. 2000), and

Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992), preclude expert

testimony regarding behavior of a sexual assault victim because it bolsters

credibility and does not require expert testimony. Id.

Importantly, as the Commonwealth notes, the enactment of 42

Pa.C.S.A. § 59205 (relating to the admissibility of expert testimony in cases

____________________________________________

5Effective August 28, 2012 (as amended), Section 5920 provides, in relevant

part:

(b) Qualifications and use of experts. - -

(1) In a criminal proceeding subject to this section, a witness

may be qualified by the court as an expert if the witness has

specialized knowledge beyond that possessed by the average

layperson based on the witness’s experience with, or

specialized training or education in, criminal justice, behavioral

sciences or victim services issues, related to sexual violence or

domestic violence, that will assist the trier of fact in

understanding the dynamics of sexual violence or domestic

violence, victim responses to sexual violence or domestic

violence and the impact of sexual violence or domestic violence

on victims during and after being assaulted.

(Footnote Continued Next Page)

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involving sexual or domestic violence) “effectively overruled Dunkle to the

extent that case can be read as categorically prohibiting expert testimony

concerning victim behavior in response to sexual abuse due to it being within

the ken of laypeople and not requiring expert analysis.” Commonwealth v.

Jones, 240 A.3d 881, 896 (Pa. 2020). Rather, expert testimony is admissible

so long as it does not invade the jury’s role in assessing credibility; whether

the testimony does so is determined on a case-by-case basis. Id. at 896-897.

For cases in which a duly-qualified expert testifies generally about victim

responses or behaviors, but makes no comment about a specific victim’s

truthfulness, such testimony is admissible. See Commonwealth v. Carter,

111 A.3d 1221, 1223 (Pa. Super. 2015) (upholding expert testimony

regarding, generally, sexual abuse victims’ delay in reporting that did not

opine on the specific victim or victim’s credibility), appeal denied, 140 A.3d

11 (Pa. 2016).

Appellant does not challenge the qualification of the sexual assault nurse

as an expert during the trial. Instead, he argues that trial counsel should have

____________________________________________

(2) If qualified as an expert, the witness may testify to facts

and opinions regarding specific types of victim responses and

victim behaviors.

(3) The witness’s opinion regarding the credibility of any other

witness, including the victim, shall not be admissible.

42 Pa.C.S.A. § 5920(b).

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objected because the subject matter did not require expert testimony.

Appellant’s Brief at 14. This is directly contrary to the statutory authorization

of expert witness testimony regarding victim responses and behaviors. See

42 Pa.C.S.A. § 5920(b)(2); Jones, supra. Moreover, the PCRA court

emphasized that the expert did not opine as to the credibility of C.T. or her

rape claims:

[Appellant] mischaracterizes the testimony of the witness. The

witness was not asked to, and did not, speak to the credibility of

the specific victim, as asserted by [Appellant]. The testimony

provided by the expert witness explained what generally occurs

when sexual assault victims are questioned. She did not address

the credibility of this specific victim.

PCRA Court Opinion, 2/7/22, at 7 n.11. Accordingly, the expert witness’s

testimony, which opined on victim behaviors in delayed reporting of sexual

abuse, without rendering an opinion on the truthfulness of C.T. own report,

was admissible in Appellant’s trial. Carter, supra; 42 Pa.C.S.A.

§ 5920(b)(2). Therefore, Appellant cannot show there is arguable merit to his

underlying claim, or that trial counsel lacked a reasonable basis for failing to

object to its admission at trial. Stewart, supra. His second claim, thus,

affords him no relief.

In his remaining claims, which we address together, Appellant argues

that trial counsel was ineffective for allowing the admission of evidence of the

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May 11, 2015 protection from abuse (“PFA”) order6 and his ten-month period

of incarceration between December 2013 and October 2014. Appellant’s Brief

at 11, 16. Regarding the PFA order, Appellant argues this was error because

the PFA court specifically precluded its use. Id. at 12. While Appellant

concedes a reasonable basis may exist for allowing the underlying facts of the

PFA petition to be entered into evidence, no reasonable basis existed for

admission of the order because it “placed in the mind of the jury that the

allegations must have been true[.]” Id. at 13. Appellant further argues that

evidence of his ten-month incarceration was inadmissible due to its irrelevance

to the instant charges or his prior crimen falsi convictions. Id. at 17.

Moreover, trial counsel failed to request a curative instruction regarding this

evidence. Id. at 17-18. Consequently, Appellant argues that the “jury was

left with the conclusion that the Appellant was a bad man, and most likely

committed the crimes for which he was accused.” Id. at 18.

Again, the PCRA court credited trial counsel’s testimony. Trial counsel

testified that C.T. had “significant injuries” as a result of Appellant’s abuse, as

well as a history of violence that Appellant committed against her. N.T. PCRA

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6In his Rule 1925(b) concise statement, statement of questions involved, and

heading of the pertinent section of his argument, Appellant limits his challenge

solely to the admission of the PFA order entered May 11, 2015. He makes no

mention of the related PFA petition or temporary PFA order which was also

admitted at trial. Consequently, he waived these aspects of his claim.

Commonwealth v. Fallon, 275 A.3d 1099 at *6-7 (Pa. Super. 2022) (slip

opinion); see also In re M.Z.T.M.W., 164 A.3d 462, 466 (Pa. Super. 2017).

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Hearing, 5/10/19, at 44-45. Consequently, the defense trial strategy was to

concede the physical assault charges in an effort to “avoid the more serious

conviction” of rape. See id. at 38, 43-44. He explained:

[Y]ou have to understand the whole background of this particular

case [including an] understanding [as to] what the defense was

in this particular case. [ T]his was a credibility case. This was [ ]

the complainant fabricating a rape because of a volatile

physical[ly] and verbal[ly] abusive relationship that she had with

[Appellant].

And obviously in discussions with [Appellant,] we liked to

humanize [Appellant]. He knew and when you read the

transcripts I am sure you saw, we were tacitly conceding - - when

I say tacitly conceding, I wasn’t asking the jury to find him guilty

of lesser included assault offense but we were tacitly implying that

we knew he was going to be found guilty of them in an effort to

avoid the more serious conviction that we obviously were

unsuccessful at avoiding.

But the information about him being incarcerated, recall that the

complainant and [Appellant] had just begun their relationship like

a couple days before his incarceration. And they stayed in

contact, there were letters that [Appellant] wrote her. We liked

the language of the letters. The fact that she stayed with him

while he was incarcerated, we wanted the jury to hear that.

And if you recall the allegation of the rape itself was like right after

he got out of jail[,] he’s alleged to have raped her. And so we

wanted the jury to hear you were barely with this guy because

you were with him for a few days, then there was a ten-month

lapse when you weren’t with him.

[W]e benefit if the jury hears it. We benefit if the jury hears that

ten months of that time he was incarcerated, [then] a couple days

[ ] after he gets out he’s accused of raping her.

We were happy that that would question and attack her credibility.

That is why [Appellant] benefited from that.

Id. at 37-39. In other words,

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[Trial counsel and Appellant] had an understanding and an

agreement that we were not going to win the entire case and

therefore we should in essence take advantage of conceding

implicitly his guilt on the assault charges, but that gives us

credibility to that [before the] jury.

It humanized [Appellant] by some of the evidence we were going

to allow them to hear. The goal was to say he was abusive, he

was physical, hint, hint, you may find him guilty of these assault

charges[,] but it is because of that, because of his abusiveness

that the complainant in this particular case has decided to

fabricate the rape.

And so understand we are admitting implicitly that he is guilty of

that [assault,] but also understand that that should indicate to you

that complainant had a motive to lie.

Id. at 43-44. Thus, as a matter of trial strategy, in which Appellant agreed

and actively participated, the defense welcomed evidence of the PFA order

and incarceration. See, e.g., id. at 45-46.

Trial counsel testified multiple times as to Appellant’s intelligence and

his involvement in preparing a strategy over the several months prior to trial.

Counsel explained that, during their first encounter, Appellant “had a large

amount of paperwork including sample cross examination questions and

points that he was interested in raising. [ H]e’s an intelligent guy and he was

at a high level of involvement. So he had everything that he wanted to talk

about.” Id. at 33. They reviewed everything in the case together, including

creating an outline in preparation for Appellant’s testimony. Id. at 42, 54.

Moreover, trial counsel explained,

And you had to understand, I know from the get go [Appellant]

without a doubt was going to take the stand and testify[,] and so

you have to be more thorough about making sure that your client

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is on board with your theory because obviously he is - - ultimately

he is going to take the stand and you don’t want him to shoot your

defense out of the water.

Id. at 46. Appellant’s testimony at trial aligned with the trial strategy, where

he testified regarding the PFA, violations thereof, and prior incarceration. Id.

at 53-54, 59-60. Thus, trial counsel testified, Appellant agreed with, and

never opposed, the defense strategy. Id. at 43, 45-46, 52-53, 55, 58, 59-60.

The PCRA court determined that allowing evidence of the PFA and period

of incarceration was a decision “based upon a specific trial strategy” for which

trial counsel had a reasonable basis. PCRA Court Opinion, 2/7/22, at 6, 7-8.

Moreover, the PCRA court credited trial counsel’s extensive testimony that

demonstrated Appellant’s active involvement in the trial strategy. Id. at 8.

It opined, “[t]he PCRA statute does not require that the strategy be effective,

but merely that trial counsel had a reasonable basis for his decision, which is

clearly the case.” Id.

We conclude that the record supports the PCRA court’s conclusion.

Appellant cannot demonstrate that no competent counsel would have chosen

this strategy. Stewart, supra. Moreover, because Appellant actively planned

and participated in the trial strategy allowing references to the PFA order and

prior incarceration, highlighted by his own trial testimony, he may not now

assert trial counsel was ineffective for pursuing such course of action. See

Commonwealth v. Brown, 196 A.3d 130, 174 (Pa. 2018) (“a defendant who

makes a knowing, voluntary, and intelligent decision concerning trial strategy

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will not later be heard to complain that trial counsel was ineffective on the

basis of that decision.”), quoting Commonwealth v. Paddy, 800 A.2d 294

(Pa. 2002). Consequently, Appellant’s final two claims fail.

Finally, because we conclude that all four of Appellant’s claims lack

merit, Appellant cannot succeed on the basis of cumulative prejudice. See

Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (explaining

that “cumulative prejudice from individual claims may be properly assessed in

the aggregate” only when “the individual claims have failed due to lack of

prejudice[.]”). Accordingly, the PCRA court properly dismissed Appellant’s

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/6/2022

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