J-S67034-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GARY EUGENE SEGRAVES,

Appellee No. 181 MDA 2015

Appeal from the PCRA Order January 21, 2015

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0000548-2009

BEFORE: BOWES, PANELLA, AND *PLATT, JJ.

DISSENTING MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016

I respectfully dissent from the learned majority’s decision to reverse 

the PCRA court herein. Instantly, the PCRA court, which was the trial court 

at both of Appellee’s trials, the first of which resulted in a mistrial on a 

significant number of charges because the jury was deadlocked,1concluded 

that there was a reasonable probability that the outcome of Appellant’s 

second trial would have been different. It did so on the ground that trial 

counsel was ineffective in failing to impeach the victim with testimony from 

one of the victim’s best friends at the time the crimes occurred. Specifically, 

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1

 Appellant was found guilty of a single count of endangering the welfare of 

a child during his first trial. The jury deadlocked on over seventy additional 

criminal charges.
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that witness, who was available and was subpoenaed to testify,2 would have 

contradicted the victim’s claim that the victim told her of the abuse. 

In my view, the PCRA court’s legal conclusions are supported by its 

factual findings. Viewing the evidence from the PCRA hearing in a light most 

favorable to Appellee as the winner below, I agree with the PCRA court that 

there is a reasonable probability that the outcome of Appellee’s trial, at least 

as to one of his convictions, would have been different. See 

Commonwealth v. Stewart, 84 A.3d 701 (Pa.Super. 2013) (en banc) 

(noting this Court’s standard of review). 

The majority readily concedes that the claim has arguable merit and 

that trial counsel had no reasonable basis for failing to elicit this testimony. 

In addition, it acknowledges that Appellee satisfied all of the aspects of the 

failure to call a witness test except for the prejudice prong. See 

Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (setting forth 

applicable test). However, it concludes that Appellee could not establish 

actual prejudice despite the fact that the first trial in this matter resulted in a 

mistrial on all but one charge leveled against Appellee and the second jury 

was initially deadlocked. 

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2 The subpoena was from Appellant’s wife’s attorney. Initially, Appellant’s 

wife, who is the mother of the victim, was scheduled to go to trial with 

Appellant. The Commonwealth nolle prossed the charge against her and 

proceeded only against Appellant. Appellant’s trial counsel, however, knew 

of the witness.
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Although the majority, relying on statements made by the trial court 

at sentencing, asserts that the evidence in this case was overwhelming, this 

is simply not accurate. The critical evidence in this case, according to the 

majority, consisted of the testimony of the victim and testimony from Dr. 

Kathleen Lewis. It is beyond cavil that a victim’s testimony alone in a sex 

offense case cannot constitute overwhelming evidence. See 

Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992). Pointedly, the first 

jury in this case could not reach a verdict based on this “compelling 

evidence[.]” Majority Memorandum at 9. Of course, Dr. Lewis did testify 

that the victim’s injuries were consistent with having been sexually abused 

and included a penetrating wound to her hymen. This evidence, though 

more than sufficient to warrant a conviction, hardly qualifies as 

overwhelming evidence of Appellee’s guilt. Indeed, the PCRA court pointed 

out that this testimony by Dr. Lewis “was dependent upon the victim’s 

statements in her medical history.” PCRA Court Opinion, 1/21/15, at 9. 

Thus, Dr. Lewis’ testimony hinged on the very credibility of the victim, which 

is what trial counsel could have further attacked with the evidence at issue. 

Moreover, as the PCRA court cogently noted, only after it twice 

provided a deadlocked jury instruction did the jury ultimately reach its 

verdict in this case. Where the jury was clearly deadlocked and another jury 

could not reach a verdict, testimony by one of the victim’s best friends at 

the time of the crimes that the victim did not tell her of the abuse, in direct 
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contradiction to the victim’s testimony, could have swayed a juror not to 

credit the victim’s testimony and resulted in a different outcome relative to 

at least some of the charges. Frankly, it is untenable to suggest that the 

evidence in this case was overwhelming where two juries had difficulty in 

reaching a verdict. Since there was a reasonable probability that the 

impeachment evidence could have altered the verdict as to at least one 

charge,3I respectfully dissent. 

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3

 The second jury found Appellant guilty of six counts of rape by forcible 

compulsion, twelve counts of rape of a child, three counts of involuntary 

deviate sexual intercourse, seven counts of aggravated indecent assault, 

eighteen counts of statutory sexual assault, twenty-five counts of indecent 

assault, and one count each of unlawful contact with a minor and corruption 

of a minor.