J-S03010-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS EDWARD RADECKI 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 727 WDA 2020

Appeal from the PCRA Order Entered July 1, 2020

In the Court of Common Pleas of Clarion County Criminal Division at 

No(s): CP-16-CR-0000540-2013

BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED: APRIL 23, 2021

Appellant, Thomas Edward Radecki, appeals from the Order dismissing

his Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-9546. He raises numerous claims alleging ineffective 

assistance of trial counsel. After careful review, we affirm.

In April 2016, after a two-week trial, a jury convicted Appellant of nine 

counts of Unlawful Prescription of Controlled Substance by Practitioner

(“Unlawful Prescription”), and one count each of Conspiracy, Dealing in 

Proceeds of Unlawful Activities, and Corrupt Organizations.

1

 On September 

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant was a psychiatrist who had four offices in Clarion and three other 

counties where he and other physicians and nurse practitioners treated people 

with drug addictions. Only three of the four locations were licensed to dispense 

controlled substances. The Drug Enforcement Agency (“DEA”) and the 
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21, 2016, the trial court imposed an aggregate sentence of 133 months to 

266 months’ incarceration. This Court affirmed the Judgment of Sentence. 

Commonwealth v. Radecki, 180 A.3d 441 (Pa. Super. 2018). Appellant did 

not seek review from the Pennsylvania Supreme Court. 

Appellant filed a timely PCRA Petition, later supplemented, asserting

numerous ineffective assistance of counsel claims, including counsel’s failure

to raise certain objections and present certain evidence, such as testimony 

from a third medical addiction expert, to demonstrate that the volume and 

method of his business fell within acceptable medical standards of office-based 

addiction treatment.

2

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Pennsylvania Office of Attorney General (“OAG”) began investigating 

Appellant’s practice throughout the four counties in 2010 after receiving

reports from pharmacies and other psychiatrists that Appellant ordered and 

provided, either in his office or via prescription, excessive doses of 

buprenorphine (Subutex and Suboxone), benzodiazepines (Klonopin, Xanax), 

Ritalin, and Adderall. After a grand jury investigation, the OAG charged 

Appellant in 2013 in connection with his treatment of thirteen patients, as well 

as Conspiracy, Dealing in Unlawful Proceeds, and Corrupt Organizations. The 

Commonwealth presented evidence at trial showing, among other things, that 

many of Appellant’s patients were poor, young women addicted to opioids and 

Adderall/Ritalin whom Appellant exploited by cultivating sexual relationships 

with them in exchange for free drugs, free housing, office jobs, and 

forgiveness of account balances. Commonwealth v. Radecki, 180 A.3d 441, 

446-448, 470 (Pa. Super. 2018). In addition to testimony from Appellant’s 

patients, many drug investigators, and Cardinal Health (Appellant’s 

medication wholesaler), the Commonwealth presented extensive expert 

testimony at trial from Dr. Russell H. Carter who reviewed the files of the 

patients at issue in this case and opined that Appellant’s treatment of each of 

them fell below standards accepted by the medical profession.

2 Dr. William Santoro, M.D., testified on Appellant’s behalf at trial as a boardcertified expert in the field of addiction medicine, contradicting many of Dr. 
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On August 9 and November 5, 2019, the PCRA court held evidentiary 

hearings at which the court heard testimony from Appellant; Dr. Brian 

Johnson, an addiction expert from New York who disputed the

Commonwealth’s medical expert; Jill Muntz, a nurse practitioner who worked 

in Appellant’s office for six months in 2012; and Joseph Troese, Esq., 

Appellant’s trial counsel, among others. On June 30, 2020, the PCRA court 

denied relief, concluding that Appellant “has not met his burden of proving 

that attorney John Troese committed errors which probably undermine 

confidence in the guilty verdict and make it unreliable.” PCRA Ct. Op, 

6/30/2020, at 10.

Appellant timely appealed. Both the PCRA court and Appellant have 

complied with Pa.R.A.P. 1925.

Issues 

Appellant raises the following questions for our review:

1. Did the PCRA court err[ed] in finding trial counsel was effective 

in failing to request and/or secure an expert report from Dr. 

Brian Johnson and in failing to present the expert medical 

testimony by Dr. Johnson, which would have refuted the 

testimony of Dr. Carter, Agent Embree, Bonnie Anthony, Dr. 

____________________________________________

Carter’s statements. See N.T. Trial, 4/22/16, at 237-321. He testified that 

Appellant’s treatment of each of the patients at issue was done in good faith 

and within the scope of the doctor-patient relationship.

Appellant also testified as an expert in substance abuse addiction. See N.T. 

Trial, 4/19/16, at 193-94. Both Appellant and Dr. Santoro testified that 

Appellant’s treatment of the thirteen patients was appropriate and accepted 

within the medical addiction treatment community.
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Hartwell, Heidi Gregg, Denise Irwin, and other Commonwealth 

witnesses?

2. Did the PCRA court err[ed] in finding trial counsel was effective 

in failing to present Jill Muntz?

3. Did the PCRA court err[ed] in finding trial counsel was effective 

when he failed to introduce and question the expert witnesses, 

including but not limited to Dr. Santoro, Dr. Radecki, Dr. 

Carter, and (Dr. Johnson had he called him), concerning 

studies on retention rates for buprenorphine treatment, which 

Dr. Radecki provided to him prior to trial?

4. Did the PCRA court err[ed] in finding trial counsel was effective 

in not introducing or adequately questioning the expert 

witnesses, including Dr. Radecki, (Dr. Johnson), Dr. Santoro, 

and Dr. Carter about weaning patients off of buprenorphine?

5. Did the PCRA court err[ed] in finding trial counsel effective in 

not providing to the Commonwealth Dr. Radecki’s 1800 patient 

records and expert report of how many of his patients had been 

treated with which medications & what their retention rates 

were and the drug urine screens including male vs. female, 

where Judge Amer had denied the Commonwealth’s pre-trial 

motion to preclude evidence of Dr. Radecki’s practice as a 

whole, and the Commonwealth introduced evidence concerning 

Dr. Radecki’s practice as a whole through Heidi Gregg, Denise 

Irwin, and Malorie McFarland?

6. Did the PCRA court err[ed] in finding trial counsel was effective 

in failing to present evidence that Mr. Morse’[s] testimony that 

Dr. Radecki purchased 589,140 units of buprenorphine was 

grossly erroneous;

7. Did the PCRA court err[ed] in finding trial counsel effective in 

failing to impeach the purported “expert” testimony of Agent 

Embree concerning the issue of abuse of buprenorphine and 

the effects of naloxone and not questioning Dr. Radecki or 

presenting Dr. Johnson to testify concerning studies which 

showed that naloxone has zero effect on oral abuse, minimal if 

any effect on intranasal abuse, and a minor effect, if any, on 

deterring IV abuse?

8. Did the PCRA court err[ed] in finding trial counsel was effective 

in his questioning of Dr. Radecki?
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9. Did the PCRA court err[ed] in finding trial counsel was effective 

in failing to object to testimony by Shawna Riva concerning her 

treatment and her sister’s treatment by Dr. Radecki where 

there was no allegation that Dr. Radecki improperly prescribed 

medications to her or her sister and in failing to object to 

Jessica Neely’s claims that she was raped as a result of taking 

medications prescribed by Dr. Radecki?

10. Did the PCRA court err[ed] in finding trial counsel was 

effective in failing to adequately rebut the erroneous testimony 

of Jessica Neely that Appellant had “a house he keeps girls 

in[,]” N.T., 4/14/16, at 154, and that Appellant had a “house 

with girls in it[,]” id. at 155?

11. Did the PCRA court err[ed] in finding trial counsel effective 

when he failed to object to Dr. Russell Carter’s expert 

testimony in which he erroneously testified that having a 

sexual relationship with a patient was against the penal laws of 

Pennsylvania?

12. Based on all of the aforementioned claims, . . . the 

cumulative errors in this matter [were] so significant that they 

deprived Dr. Radecki of a fair trial in violation of his due process 

rights and his state and federal constitutional right to a fair 

trial?

Appellant’s Br. at 6-7 (reordered).

Relevant Legal Standards

PCRA review

We review an order denying a PCRA petition to determine whether the 

PCRA court’s decision is supported by the evidence of record and free of legal 

error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) 

(citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)). “[We] must 

defer to the PCRA court’s findings of fact and credibility determinations, which 

are supported by the record.” Commonwealth v. Diaz, 183 A.3d 417, 421 

(Pa. Super. 2018) (emphasis and citation omitted). However, we give no 
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deference to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 

1190, 1194 (Pa. Super. 2012).

Ineffective assistance of counsel

Appellant alleges trial counsel provided ineffective assistance. In 

addressing such claims, we presume counsel is effective. Commonwealth 

v. Cox, 983 A.2d 666, 678 (Pa. 2009). To overcome this presumption, a 

petitioner must establish that: (1) the underlying claim has arguable merit; 

(2) counsel lacked a reasonable basis for his act or omission; and (3) 

petitioner suffered actual prejudice. Commonwealth v. Treiber, 121 A.3d 

435, 445 (Pa. 2015). In order to establish prejudice, a petitioner must 

demonstrate “that there is a reasonable probability that, but for counsel’s 

error or omission, the result of the proceeding would have been different.” 

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012) (citation omitted). 

“A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.” Commonwealth v. Sandusky, 203 A.3d 1033, 1044 (Pa. 

Super. 2019). 

“If a petitioner fails to satisfy any prong of the ineffectiveness inquiry, a 

claim of ineffective assistance of counsel will be rejected.” Commonwealth 

v. Eichinger, 108 A.3d 821, 830-31 (Pa. 2014) (citation omitted). Thus, “if 

it is clear that [an a]ppellant has not established that counsel’s act or omission 

adversely affected the outcome of the proceedings, the claim may be 

dismissed on that basis alone and the court need not first determine whether 
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the first and second prongs have been met.” Commonwealth v. Gribble, 

863 A.2d 455, 460-61 (Pa. 2004) (citation omitted). 

Finally, it is well settled that a defendant is entitled to a fair trial, not a 

perfect one. Commonwealth v. Laird, 119 A.3d 972, 986 (Pa. 2015). An 

ineffectiveness claim will not succeed where a petitioner claims, with the 

benefit of hindsight, that counsel could have conducted his trial differently. 

Id. In addition, the failure to present witness testimony that would have been 

merely cumulative of other evidence he presented will not support a finding 

of ineffective assistance of counsel where there is sufficient evidence in the 

record for conviction. Commonwealth v. Showers, 782 A2d 1010, 1022 

(Pa. Super. 2001).

Unlawful prescription, 35 P.S. § 780-113(a)(14)

Appellant asserts that counsel’s actions and omissions likely contributed 

to his nine convictions for Unlawful Prescription. The statute defining this 

offense provides that a medical practitioner may not prescribe a controlled 

substance unless it is done (1) “in good faith in the course of his professional 

practice,” (2) “within the scope of the patient relationship,” and (3) “in 

accordance with treatment principles accepted by a responsible segment of 

the medical profession.” 35 P.S. § 780-113(a)(14). To establish a violation, 

the Commonwealth must prove beyond a reasonable doubt that the 

defendant-practitioner wrote a prescription that violated any one of these

three standards. Commonwealth v. Salameh, 617 A.2d 1314, 1315-16 (Pa. 

Super. 1992).
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Issues 1 and 2: Counsel’s Failure to Call Dr. Johnson and Jill Muntz

Appellant first asserts that trial counsel was ineffective for failing to 

present testimony at trial from Dr. Johnson and Jill Muntz, the nurse 

practitioner who worked at Appellant’s unlicensed location in Kane County. 

Appellant’s Brief at 29, 73-74. He contends Dr. Johnson’s and Ms. Muntz’s 

testimony was necessary to refute the Commonwealth’s evidence that 

prescribing benzodiazepines (Klonopin) with buprenorphine (Subutex) is

“inappropriate” and “dangerous.” Appellant’s Br. at 36, 73. After providing a 

detailed recitation of Dr. Johnson’s PCRA testimony, emphasizing numerous 

instances where Dr. Johnson’s PCRA hearing testimony either rejected or

directly contradicted the Commonwealth’s expert’s testimony, Appellant 

concludes that because Dr. Johnson is “one of the world’s leading experts in 

addiction medicine,” he suffered prejudice from counsel’s failure to present 

his testimony. Id. at 28-40.3 Appellant also avers that counsel should have 

called Ms. Muntz as a fact witness at trial.

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3

In pre-trial proceedings, the court provided three different dates to Appellant 

by which to produce Dr. Johnson’s expert report. Less than one month before 

trial, on March 21, 2016, Appellant’s counsel again inquired whether Dr. 

Johnson could testify as an expert even though Dr. Johnson had not produced 

an expert report. Because Appellant had failed to meet the three deadlines, 

and still had not provided a written report from Dr. Johnson, the court decided 

Dr. Johnson could not testify as an expert. Commonwealth v. Radecki, 180 

A.3d 441, 453 (Pa. Super. 2018). In addition, counsel attempted to call Dr. 

Johnson at trial as a fact witness but the court ultimately forbid his testimony 

as hearsay and, again, as precluded for failing to present an expert report. 

N.T., 4/22/16, at 184.
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“To be entitled to relief on a claim of ineffectiveness for failure to call a 

witness, an appellant must demonstrate that (1) the witness existed; (2) was 

available, and willing to cooperate; (3) counsel knew or should have known of 

the witness; and (4) the absence of the witness’s testimony prejudiced the 

appellant.” Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016) 

(citation omitted). To establish prejudice, a petition must show that the 

missing testimony “would have been beneficial under the circumstances of the 

case.” Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012) (citation 

omitted). A claim will not succeed if the proposed witness’s testimony “would 

not have materially aided him.” Commonwealth v. Bauhammers, 92 A.3d 

708, 725 (Pa. 2014).

Both Dr. Johnson and Ms. Muntz appeared at Appellant’s PCRA hearing

and testified that Appellant’s counsel knew that they were available and willing 

to testify at Appellant’s trial.

4 Although these witnesses could testify generally 

in support of Appellant’s treatment program, neither of them addressed the 

specific allegations pertaining to Appellant’s treatment of the thirteen patientvictims underlying his criminal charges. See, e.g., N.T. PCRA, 8/9/19, at 116 

(Dr. Johnson testifying that he knew insufficient details about Appellant’s 

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4 Ms. Muntz was named as a co-conspirator but at the time of Appellant’s trial, 

she had not yet been charged and the statute of limitations had not yet 

expired. See N.T.,4/22/16, at 4. Although the defense sent her a subpoena 

and she did show up to testify at trial, defense counsel stated that because of 

her potential criminal liability, “I don’t think she’s going to testify, and I don’t 

want to put her in that position.” Id. at 5.
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impregnating a patient) and 21-40 (Ms. Muntz testifying generally about 

Appellant’s tapering practice). 

Our review of the record indicates that neither Dr. Johnson nor Ms. 

Muntz could have testified that Appellant prescribed and administered 

medications to the specific nine patient-victims (1) in good faith and (2) within 

the scope of the patient relationship. Accordingly, their generalized testimony 

would not have materially aided Appellant in rebutting the Commonwealth’s 

evidence proving those elements of the crime of Unlawful Prescription. 

Further, in light of the plethora of evidence presented against Appellant, 

we find the PCRA court properly exercised its discretion in finding that 

Appellant was not able to establish that, but for counsel’s error or omission, 

there is a reasonable probability that the result of the proceeding would have 

been different. Seven former patients, thirteen drug enforcement 

investigators, including one from Appellant’s medication wholesaler, at least 

two pharmacists, two doctors who practiced with him, and several other 

employees, in addition to the expert witnesses, testified regarding his overprescription of addictive medications, his providing controlled substances 

without a prescription at times and from unlicensed locations, and his 

inappropriate behavior towards women patients, to prove Appellant guilty of 

not only Unlawful Prescription with respect to the nine patient-victims, but 

also Corrupt Organizations, Conspiracy, and Dealing in Proceeds of Unlawful 

Activities. We discern no abuse of the PCRA court’s discretion and conclude 

no relief is due on these issues.
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Issue 3: Retention rates of patients 

Appellant next asserts that counsel should have presented numerous 

retention rate studies and questioned the medical experts, including himself, 

more vigorously about the importance of patient retention rates in 

demonstrating successful substance abuse treatment programs. Appellant’s 

Brief at 42-43. He contends that this evidence would have led the jury to 

conclude that Appellant’s “prescribing practices were within the mainstream 

of buprenorphine treatment.” Id. at 43. Appellant notes that he testified at 

trial that retention rates for a buprenorphine program of 38% is considered a 

quality program and studies, if admitted, would have shown that his retention 

rate of 54%, as testified to by Dr. Johnson, was “stellar” and “well-above 

average.” Id. at 42-43.

Our review indicates that Appellant presented testimony from both 

himself and Dr. Santoro about the importance of retention rates during the 

trial. In his four-paragraph argument, Appellant does not cite any case law 

or attempt to articulate how even more, essentially identical, evidence

demonstrating the importance of retention rates of treatment programs 

generally would rebut the Commonwealth’s evidence. Accordingly, Appellant 

has not established that but for counsel’s failure to present more evidence 

regarding retention rates of mainstream drug programs, there is a reasonable 

probability that the jury’s verdict would have been different.

Issue 4: Medication reduction treatment studies
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Appellant also asserts that counsel “did not adequately question either 

Dr. Santoro or [Appellant] concerning weaning patients off buprenorphine” 

with the use of numerous studies. Id. at 43-44. He contends that, as a result, 

the jury was not informed that Appellant “had a weaning program in place 

that was designed to slowly taper his patients [ ] to prevent relapses and 

possible death.” Id. at 44. He contends that counsel’s failure to introduce 

this evidence “left undisputed” the Commonwealth’s argument that Appellant 

sought to prolong his patients’ substance abuse rather than treat it 

responsibly. See id., at 44-45. 

The record belies Appellant’s contention that the jury was not informed 

about Appellant’s weaning program. In fact, Appellant testified that he slowly 

and deliberately tapered his patients’ buprenorphine dosage. N.T. Trial, 

4/21/16, at 64-66. In addition, Dr. Santoro agreed that this strategy was 

appropriate. N.T. Trial, 4/22/16, at 272. Thus, the record does not support 

Appellant’s contention that the Commonwealth’s theory was not rebutted. 

Moreover, Appellant again does not provide legal authority to support 

his argument. He also fails to articulate how admission of medical studies

regarding general addiction treatment would have countered the evidence,

found credible by the jury, that Appellant did not prescribe the drugs in good 

faith or within the patient relationship with respect to the nine patient victims 

whose treatment engendered his convictions. Accordingly, he has not 

established that but for counsel’s omission, the outcome of the proceeding 

would have been different.
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Issue 5: All Patient Records

Appellant next asserts trial counsel was ineffective for failing to provide 

the Commonwealth with the records of all of his 1800 patients and a summary 

report Appellant himself compiled regarding his treatment of each patient, 

their drug screen results, and those patients’ retention rates. Id. at 49. He 

notes that he asked trial counsel to provide the records and tabulations to the 

Commonwealth, but counsel allegedly informed Appellant “that he would 

surprise the Commonwealth with the information at trial.” Id.

Again, Appellant does not provide citation to legal authority or develop 

any argument to inform us how such evidence negates the Commonwealth’s 

evidence that Appellant’s treatment of the nine patient-victims was not in 

good faith or within the patient relationship. Appellant’s summary conclusions 

about his overall practice percentages do not establish that had counsel 

provided this evidence to the Commonwealth, the jury would likely have 

rendered a different verdict. 

Issue 6: Volume of Buprenorphine Purchases

Appellant asserts that counsel should have presented evidence to refute

testimony presented by the Commonwealth’s witness from Cardinal Health

who testified that Appellant purchased 589,140 dosages of buprenorphine in 

2011.

5 Id. at 61. Appellant contends that counsel should have called 

____________________________________________

5 On cross-examination, Appellant’s attorney elicited from the Cardinal 

Representative that the doses purchased by Appellant in 2011 were closer to 

223,200. N.T., 4/14/16, at 41. 
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Appellant’s daughter, then a medical student who had worked in Appellant’s 

office, to testify about the pill purchases because she had reviewed the raw 

data provided by the Commonwealth on a CD showing Appellant’s purchases 

from Cardinal Health in 2011 and concluded that the actual number of doses 

purchased by Appellant was closer to 100,000. Appellant’s Br. at 61. 

As with the prior issue, Appellant fails to articulate how this evidence 

would have shown that Appellant prescribed medication to the nine patientvictims in good faith and within the patient relationship. Accordingly, he has 

not shown how the outcome of his proceeding would have been different but 

for counsel’s omission.

Issue 7: Ineffective Questioning of Investigator Embree

Appellant asserts that counsel should have impeached certain testimony 

presented by Commonwealth witness Agent James Embree. Appellant’s Br. at 

45. Specifically, Appellant contends that counsel should have presented 

witnesses to counter Agent Embree’s testimony that it was easier for patients 

to abuse Subutex, Appellant’s preferred buprenorphine treatment, than 

Suboxone, which contains naloxone. Id. at 45. In support, Appellant 

emphasizes Dr. Johnson’s PCRA testimony that “[t]here is essentially no 

difference” between Subutex and Suboxone. Id. at 46, citing N.T. PCRA, 

8/9/19, at 59. He also emphasizes his own PCRA testimony regarding the 

effects of naloxone contained in Suboxone and contends that counsel’s failure 

to impeach Agent Embree’s testimony was prejudicial because it left 
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unchallenged the Commonwealth’s theory that Appellant sought to prolong his 

patients’ addiction. See Appellant’s Br. at 48.

Appellant’s contention is illogical and unsupported by the record. In fact, 

there was testimony challenging the Commonwealth’s theory: the record 

shows that both Appellant and Dr. Santoro testified that the naloxone 

contained in Suboxone limited the euphoric effects of buprenorphine, thereby 

limiting the risk that a patient would misuse the medication. See N.T., 

4/22/16, at 88-89, 252. This testimony mirrors Agent Embree’s testimony. 

Therefore, impeaching Agent Embree’s testimony would have likewise 

impeached Appellant’s credibility and the credibility of his own expert. 

Accordingly, Appellant cannot demonstrate that counsel’s omission was 

without strategic reason or that it caused prejudice.6

Issue 8: Appellant’s own testimony

Appellant also asserts counsel should have asked Appellant different 

questions while he was testifying in order to lead the jury to conclude he was 

not guilty of Unlawful Prescription. Appellant’s Br. at 52-57. Appellant asserts 

that to refute the Commonwealth’s position that Appellant was not prescribing 

in good faith, counsel should have asked him questions to: (1) highlight the 

differences between him and the Commonwealth’s expert, Dr. Russell Carter, 

with respect to addiction education and expertise; (2) explain why Appellant 

____________________________________________

6

In addressing Appellant’s direct appeal, this Court noted that Agent Embree’s 

testimony was cumulative of that offered by Dr. Carter and Dr. Santora so any 

error in the admission of this testimony was harmless. Radecki, 180 A.3d at 

462.
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preferred to prescribe Subutex over Suboxone; and (3) expound on studies 

regarding opioid dependent patients with co-existing anxiety disorders and 

ADHD. Appellant asserts that he suffered actual prejudice because more 

detailed evidence from Appellant “would have cast significant doubt on the 

testimony of multiple Commonwealth witnesses.” Id. at 58.

Appellant’s contentions do not convince us that counsel’s performance 

rendered him unable to have a fair trial. Appellant testified at length over the 

course of three days about his medical credentials, his experience treating 

patients with opioid addiction and other mental health issues, and the specific 

allegations made by his patients. See, e.g., N.T. Trial, 4/19/16, at 168-94

(testifying to his credentials); N.T. Trial, 4/21/16, at 117-23 (addressing 

treatment for those with opioid addiction and Attention Deficit Hyperactivity

Disorder), 140-97 (addressing specific allegations); N.T. Trial, 4/22/16, at 26-

72 (same). Appellant’s hindsight conclusion that his own testimony was 

flawed and inadequate because it did not persuade the jury of his innocence

ignores the plethora of evidence that convinced the jury that he did not 

prescribe to nine patients “in good faith in the course of his professional 

practice,” and “within the scope of the patient relationship.” 35 P.S. § 780-

133(a)(14). Appellant’s argument does not demonstrate that but for counsel’s 

omissions, the outcome of the trial would have been different. Accordingly, 

no relief is due on this claim.

Issues 9: Failure to object to testimony from Shawna Riva and Jessica 

Neely
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Appellant claims he suffered actual prejudice when counsel failed to 

object to testimony from two of his patients on relevancy grounds because 

the Commonwealth did not charge Appellant with unlawfully prescribing 

medications to these patients. See Appellant’s Br. at 65-67, 69-72. He notes 

that trial counsel agreed at the PCRA hearing that he should have objected to 

Shawna Riva’s testimony regarding Appellant’s unsuccessful treatment of her 

sister and he did not know why he did not object. Id. at 66, citing N.T. PCRA 

Hearing, 8/9/19, at 148. Appellant also notes that trial counsel admitted at 

the PCRA Hearing that testimony from Jessica Neely regarding her alleged 

rape after having taken Lithium was irrelevant and prejudicial.7 Appellant’s 

Br. at 66, citing N.T. Trial, 8/9/19, at 144. Appellant argues that because the 

Commonwealth insisted that treatment of patients other than the thirteen 

alleged patient-victims was irrelevant and the Commonwealth did not charge

Appellant with improperly prescribing to Nealy, Riva, or Riva’s sister, his 

counsel’s failure to object was highly prejudicial. Appellant’s Br. at 66.

Our review of the PCRA hearing confirms that trial counsel stated that 

Neely’s testimony regarding the rape was irrelevant and prejudicial, and that

____________________________________________

7 Neely testified that she was at a party after having taken Klonopin, Subutex, 

and Lithium prescribed or otherwise provided by Appellant and, after having 

a couple of drinks, she passed out and woke up in the hospital with bruises 

between her thighs and blood on her. Id. at 163-64. She stated she “[didn’t] 

really remember” what happened and attributed her inability to remember to 

Lithium. Id. at 163-64. She also stated she had been raped. Id. The DNA kit 

revealed only the presence of her boyfriend’s sperm. N.T. Trial, 4/14/16, at 

164.
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he should have objected to Ms. Riva’s testimony about her sister. N.T. PCRA, 

8/9/19, at 144, 148. He also stated that “some of the witnesses sounded so 

unbelievable that I thought just let their testimony stand. . . . I think [Neely] 

is one of the witnesses that – some of the stuff that they said was outlandish.” 

Id. at 147. 

Assuming this claim has merit, and assuming trial counsel’s 

acknowledgment and explanation of his failure to object falls short of a 

reasonable strategy, we consider whether “there is a reasonable probability 

that, but for counsel’s error or omission, the result of the proceeding would 

have been different.” Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 

2012) (citation omitted). 

We conclude that, even if counsel had objected, the outcome of the trial 

would not have changed in light of the evidence presented at trial. As noted 

above, seven former patients, thirteen drug enforcement investigators, 

including one from Appellant’s medication wholesaler, at least two 

pharmacists, two doctors who practiced with him, and several other 

employees, in addition to the expert witnesses, testified regarding Appellant’s

over-prescription of addictive medications, his providing controlled substances 

without a prescription at times and from unlicensed locations, and his 

inappropriate behavior towards women patients, to prove Appellant guilty of 

not only Unlawful Prescription with respect to the nine patient-victims, but 

also Corrupt Organizations, Conspiracy, and Dealing in Proceeds of Unlawful 
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Activities. It is unlikely that if Appellant’s counsel had objected to the specific 

testimony Appellant now challenges, the outcome of the trial would have been 

different.

Issue 11: Failure to object to Dr. Carter’s erroneous statement of law

Appellant also claims counsel should have objected when Dr. Carter 

erroneously testified that a sexual relationship between a doctor and patient 

was “a violation of the penal code in Pennsylvania.” Appellant’s Br. at 67-68. 

He notes that “[w]hile unethical, having a sexual relationship with a patient is 

not, alone, against the law.” Id. at 68. While Appellant is correct in his 

assessment, we nonetheless cannot conclude Appellant suffered prejudice 

sufficient to warrant a new trial as a result of counsel’s omission. 

Dr. Carter testified over the course of two days, providing his expert 

opinion of Appellant’s medical treatment program. When asked his opinion of 

a hypothetical situation in which a prescribing doctor maintained a sexual 

relationship with his patient, Dr. Carter responded: “Clearly unacceptable. I 

mean, if you look at the American Psychological Association, it says don’t. The 

American Psychiatric Association says don’t. The AMA says don’t. All of the 

states say don’t, including Pennsylvania. It’s a violation of the penal code in 

Pennsylvania.” Id.

Our review of the PCRA hearing testimony and the trial testimony 

reveals that counsel had a reasonable strategy for not objecting to Dr. Carter’s 

brief reference to the penal code. The Commonwealth did not dwell on or 

highlight this statement, and quickly moved on to another subject. See N.T. 
J-S03010-21

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Trial, 4/19/16, at 67-68. Any objection by counsel would have only 

emphasized the entire comment to the jury. 

Moreover, Dr. Carter’s erroneous reference to the penal code was brief 

and, in light of the plethora of evidence against Appellant, we cannot conclude 

Appellant suffered prejudice. Accordingly, this issue warrants no relief.

Issue 12: Cumulative Prejudice

In his final claim, Appellant asserts that counsel’s numerous errors, in 

the aggregate, undermined confidence in the jury’s verdict. Appellant’s Br. at 

72. “We have often held that no number of failed claims may collectively 

warrant relief if they fail to do so individually.” Commonwealth v. Spotz,

18 A.3d 244, 321 (Pa. 2011) (citation and quotation marks omitted). 

“However, we have clarified that this principle applies to claims that fail 

because of lack of merit or arguable merit.” Id. “When the failure of individual 

claims is grounded in lack of prejudice, then the cumulative prejudice from 

those individual claims may properly be assessed.” Id.

The PCRA court addressed the possibility of cumulative prejudice 

resulting from trial counsel’s representation and determined that, even if 

Appellant had established each discrete claim of counsel’s ineffectiveness, 

there was no reasonable probability that the verdict would have been 

different. PCRA Ct. Op., 7/1/20, at 23. We agree with the PCRA court’s 

conclusion. Based upon our review of each of Appellant’s ineffectiveness 

claims, there is no cumulative prejudice sufficient to undermine confidence in 

the jury’s verdict. 
J-S03010-21

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CONCLUSION

In summary, Appellant is not entitled to retry his case with the benefit 

of hindsight. While it is certainly possible to comb through a record as 

extensive as this and find minor inaccuracies or missteps by any competent 

counsel, we disagree with Appellant that any of these alleged errors, if 

corrected, would have changed the outcome of this trial. 

Order affirmed.

Judge Murray joins the memorandum.

Judge Strassburger did not participate in the consideration or decision 

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/2021