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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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See Commonwealth v. Tyma, 93 A.3d 513 (Pa.Super. 2013) (unpublished 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 
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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 

harassment1on 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.
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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 
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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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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 
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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 
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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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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. 
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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
28a 

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. 

of 201102034 and two (2) consecutive terms of probation of two (2) years each, with nine (9) 

sentenced to a term of 60 days imprisonment followed by one (]) year of house arrest at Count 1 

was found guilty of all charges. On May 24, 2012, he appeared before this Court and was 

was held before this Court form March 12-19, 2012 and at the conclusion of trial, the Defendant 

charges relating to victims r:8LIL••and J·K-were nolle prossed. A bench trial 

Defendant, a rheumatologist, committed against 20 of his female patients. Prior to trial, the 

The Defendant was charged with numerous offenses1 in relation to a series of assaults the 

therefore, this Court's Order should be affirmed. 

record reveals that the Defendant has failed to present any meritorious issues on appeal and, 

dismissed his Post Conviction Relief Act Petition without a hearing. However, a review of the 

The Defendant has appealed from this Court's Order of November 10, 2015, which 

OPINION 

Defendant 

THOMAS TYMA, 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

CC: 201102034, 201104600, 2011 02031 

201104424,201102032,201111977, 

201102564,201107833,201102583 

V. 

Circulated 11/17/2016 03:48 PM Circulated 11/29/2016 09:42 AM
29a 

2 

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). 

deemed ineffective for failing to pursue a meritless issue... Also, if the prejudice prong of the 

issue underlying the charge of ineffectiveness is not of arguable merit, counsel will not be 

counsel was not ineffective, and the appellant bears the burden of proving otherwise ... [I]f the 

such error." Comnmnwea1Ch v. Gib®n, 19 A.3d 512, 525-26 (Pa. 2011). "The Jaw presumes that 

is a reasonable probability that the result of the proceedings would have been different absent 

is of arguable merit; (2) no reasonable basis existed for counsel's action or inaction; and (3) there 

Petitioner must demonstrate, by a preponderance of the evidence, that: (1) the underlying claim 

Generally, in order to establish a claim for the ineffective assistance of counsel, "a PCRA 

of understanding and will address them as follows: 

Court has reviewed the issues and has combined and reordered them for manageability and ease 

On appeal, the Defendant raises 29 claims2 of the ineffective assistance of counsel. This 

This appeal followed. 

of its intent to do so, this Court dismissed the Petition without a hearing on November 10, 2015. 

record in its entirety as well as the Commonwealth's response and giving the appropriate notice 

October 27, 2014, when the Defendant filed a counseled PCRA Petition. After reviewing the 

was affirmed by the Superior court on December 18, 2013. No further action was taken until 

Post-Sentence Motions were tiled and were denied on June 26, 2012. The judgment of sentence 

additional two (2) year terms of probation run concurrently with the initial sentence. Timely 

• 
3 

30a 

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. 
4 

31a 

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 

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. 
32a 

5 

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 

THE DEFENDANT: No. 

THE COURT: Have you had any drugs and alcohol in the last 48 hours? 

THE DEFENDANT: Yes. 

THE COURT: Are you able to read, write and understand the English language? 

THE DEFENDAl\1: I'm sorry; 26 years. 

THE COURT: Are you able to read, write - 

THE DEFENDANT: Through medical school; 24 years. 

THE COURT: How much education have you had? 

THE DEFEKDANT: Fifty-four years old. 

THE COURT: How old are you? 

THE DEFENDANT: Thomas Allen Tyma, M.D. 

State your name. 

THE COURT: Bring your client forward, Mr. Levenson. 

The following occurred during the jury trial waiver colloquy: 

complete breakdown in the adversarial process." 

the jury trial waiver was "unauthorized" and "imput[ed] guilt to the Petitioner and caus[ed] a 

Next, the Defendant argues that counsel's reference to the accusers as "victims" during 

3. Imputed Guilt During Jury Trial Waiver 

gives rise to a claim of ineffectiveness. This claim must fail. 

nature of his claims. The stamp of Mr. Zappala's name was appropriate and legal and in no way 
6 

33a 

And at the case ending in 424, it is alleged that f911F-is the victim. - 

..... And there is one corresponding count of harassment. 

At the criminal complaint ending in 600, it is alleged that tmllll H-is 

the victim. 

At the criminal complaint ending in 833, it is alleged that M. 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 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 

by two years. And there are three corresponding counts of harassment. 

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. 

You are also charged with six summary counts of harassment with the alleged 

victims being the same. 

Each of these are punishable by not more than two years of imprisonment. 

At the criminal complaint ending in 034, it is alleged that Tmll J 

- is the victim. Count two alleges B- smlll. Count three alleges UIII 

Giii is the victim. Count four, J. ~ is the victim. Count five is 

A9111 M is the victim. And count six alleges DM 

You are charged with one summary of harassment. 

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 also charged with a summary of harassment at that information. 

-· or caused her to have indecent contact with you without her consent. 

This is punishable by two years of imprisonment. 
disregarded and that only relevant and competent evidence is considered ... In a non-jury trial, 

"When the court is sitting as fact-finder, it is presumed that inadmissible evidence is 

(Trial Transcript, p. 3-7), emphasis added. 

THE COURT: I will accept the waiver. 

THE DEFENDANT: No. 

Has anybody promise you anything or threatened you in any way that may have 

influenced your decision? 

7 

34a 

THE COURT: And to that end, you have read the waiver of jury trial form, which 

I will accept. 

THE DEFENDANT: That is correct. 

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: All right. 

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. 

MS. DiGIOVANNI: There have been 18 victims, so 18 counts of indecent 

assault. 

MR. LEVENSON: Two for each victim. 

MS. DiGIOVANNI: I believe it's two - 

THE COURT: I added those wrong. 

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 JIIIIS is the victim. This is punishable by two years of 

imprisonment. There are four corresponding counts of summary harassment. 
8 

accused be allowed to participate in the selection of the jury panel, and (3) that the verdict be 

that the jury be chosen form members of the community (i.e., a jury of one's peers), (2) that the 

voluntary, and the accused must be aware of the essential ingredients inherent to a jury trial... (I) 

It is well-established that in order to be valid, "a jury waiver must be knowing and 

counsel, who "misled" him regarding his chances of success. 

. 35a 

Next, the Defendant argues that his waiver of jury trial was unJawfully induced by trial 

4. Unlawful Inducement of Jury Trial Waiver 

to a "complete breakdown in the adversarial process." This claim is utterly without merit. 

not prejudice this Court, did not lead this Court to pre-judge the merits of the case, nor did it lead 

necessary to state, Mr. Leveson 's single use of the word "victims" during the jury trial waiver did 

this reflects on the merits of the Concise Statement as a whole. To the extent that it is even 

defense counsel would challenge this Court's judgment and fairness in such a manner and again, 

aforementioned "complete breakdown in the adversarial process." This Court is incredulous that 

listen to the evidence and render a fair verdict based on that evidence, leading to the 

Court was so prejudiced by Mr. Levenson's single reference to "victims" that it was unable to 

Superior Court found to be without merit) and also by this claim, wherein he alleges that this 

evidenced by his claim on direct appeal that this Court misrepresented the evidence (which the 

It is clear that the Defendant and his counsel hold this Court in very low regard, as 

See also Qonunonwealth. v. Fears, 86 A.3d 795, 819 (Pa. 2014). 

otherwise give to a jury." Cemmonwealth y. Gonzales, 609 A.2d 1368, 13 71 (Pa.Super. 1992). 

thus assuming that the court in a bench trial would follow the very instructions which it would 

the court rs presumed to have disregarded evidence too prejudicial to be considered by a jury, 
9 

36a 

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. 

he pled," Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.Super. 1999), the Defendant is 

and "may not assert grounds for withdrawing the plea that contradict the statements made when 

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 

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. 
all. 

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 

J- and J .. M. (PA Natalie Crcsenze), as well as L- H•• and U .. 

10 

37a 

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, 
Q. (Mr. Levenson): And was your physician assistant in the room while you 

conducted this physical examination of .. c::8111? 

Regarding R C-: 

(T. T. p. 392). 

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. 

Q. (Mr. Levenson): Approximately how many times did you see .. West? 

and with a Physician Assistant. Regarding C .. w•: 

11 

3Sa 

On direct examination, the Defendant testified that he saw the various patients both alone 

(TT. pp. 343, 367-368). 

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 I could teach her 

as we went in together as a team then to evaluate the patient. 

Q. And why was that? 

A. Our relatively new physician assistant, Allison. 

Q. \Vho? 

A. Yes. 

Q. Before seeing her did anyone else in your office see her first? 

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. (Mr. I evenson): And what was the job of the physician assistant? 

utilized the Physician's Assistants: 

At trial, the Defendant testified regarding his typical practice and procedures and how he 
Q. (Mr. Levenson): Was W J. a patient of yours? 

Regarding T-1111111: 

(T.T. p. 382). 

A. I saw her three times. Once with Natalie, the physician assistant, as the 

last patient was, and then twice alone. 

Q. How many times did you see ... F-? 

A. (The Defendant): Yes. 

Q. (Mr. Levenson): Dr. Tyma was F- F- a patient of yours? 

(T.T. p. 380). 

A. Twice. 

Q. How many times did you see her alone? 

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. 

12 

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Q. What did you see her for? 

A. I saw her three times. 

Q. And how many times did you see her? 

A. (The Defendant): Yes. 

Q. (Mr. Levenson): Dr. Tyma, was B9I S- a patient of yours? 

(T.T. p. 369). 

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. 
40a 

13 

A. (The Defendant): Yes. 

Q. (Mr. Levenson): Is L-H- a patient of yours? 

(T.T. p. 356, 358). 

Regarding L- H-: 

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. 

Q. And how many times did you see her after that initial examination? 

A. I did a full consultative history and physical examination, including a heart 

examination. 

Q. And what happened during that initial visit with .. M8? 

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. When did you first see her? 

A. (The Defendant): Yes, she was. 

Q. (Mr. Levenson): Was J .. M. a patient of yours? 

Regarding 11119 M•: 

(T.T. p. 386). 

A. Once. Second visit. First visit with Natalie. 

Q. How many times did you see her alone? 

A. Yes. 

Q. And how many times did you see her? Would it have been two times? 

A. (The Defendant): Yes. 
41a 

14 

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 

Q. And can you tell me what happened during that exam when you were 

alone with Dr. Tyma? 

A. One time. 

Q. Were you alone with Dr. Tyma for one of the physicians one time or more 

than one time? 

A. CCIII w•): Yes. 

Q. (Ms. DiGiovanni): Were there any times that you were alone with Dr. 

Tyma? 

testified that the touchings occurred when they were alone with Dr. Tyma: 

The record also reflects that, with the exception of~ cmll, all of the women 

(TT. p. 370). 

A. I personally saw her at least 22 times. And there may have been more than 

that. 

Q. And how many times did you see .. G.? 

A. (The Defendant): Yes, she was. 

Q. (Mr. Levenson): Was U·G-apaticnt of ours [sic]? 

Regarding U- G-: 

(T.T. p. 387); and 

A. It began seeing her at Passavant Hospital only. I never saw her in the 

office. 

Q. Where did you see Ill H-? 
Q. Please tell us the details how that physical exam went. 

A. Yes. 

Q. And Dr. Tyma performed a physical exam? 

A. Yes, ma'am. 

Q. During the initial meeting, did you describe for Dr. Tyma your symptoms 

and why it was you came to see him? 

A. Myself. 

Q. Was Dr. Tyma in there just by himself with you or was there anyone else 

present? 

Q. (Ms. Di Giovanni): When you first met Dr. Tyma for the very first time, 

were you in an exam room? 

15 

42a 

(T.T. p. 66). 

A. No. 

Q. When Dr. Tyma came into the room, was anyone else with you besides 

you and Dr. Tyma? 

A. Yes. 

Q. Now, at some point did Dr. Tyma come into the room? 

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. (Ms. DiGiovanni): Did anyone take a history or talk to you about the 

nature of your illness at all? 

(T. T. p. 27). 

clothed. At that point, he took his right hand inside my blouse and 

covered my left breast. 
43a 

Q. When you say continued with his exam, what exactly did Dr. Tyma do? 

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. 

16 

Q. And while you and Dr. Tyma were alone in that third room, can you tell 

me exactly what happened in that room? 

A. Closed. 

Q. Was the door open or closed, do you recall? 

A. Yes. 

Q. When Dr. Tyma came into this third room, were you and he alone 

together? 

A. Yes. 

Q. When you say he, you mean 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. Did you then have further contact with Dr. Tyma? 

A. (T .. J .. ): Yes. 

Q. (Ms. Di Giovanni): But you went to another location for the lab work, is 

that correct? 

(T.T. p. 110-111). 

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. 
A. Yes. 

. .. Q. Did Dr. Tyma perform any further physical exam beyond your hands? 

A. Closed ... 

Q. Was the exam door open or closed? 

A. Yes. 

Q. So when Dr. Tyma came to the exam room, were you and he alone in the 

room? 

A. No. 

17 

44a 

Q. Did you meet with any other personal that day other than Dr. Tyma? 

A. Yes. 

Q. And can you tell me when you went to the Wexford office, were you taken 

into the exam room? 

A (Jiii Ma): Yes. 

Q. (Ms. DiGiovanni): When you went to that first visit, did you have an 

appointment specifically with Dr. Tyma? 

(T. T. p. 206-207). 

A. Right. 

Q. And you said grabbed and massaged, is that correct? 

A. My left breast. 

Q. When you say he grabbed your breast, which breast? 

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. 
A (U.GIII): Yes. 

Q. (Ms. DiGiovanni): At any point in time, .. G- did anything happen 

during any exams with Dr. Tyma that you found to be inappropriate? 

(T.T. p. 143-144). 

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. 

Q. Explain for me exactly what happened during that visit. 

A. Yes, ma'am. 

18 

45a 

Q. Again, when Dr. Tyma came in the room, was the curtain closed? 

A Yes, ma'am. 

Q. Was this the time right before the last visit? 

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. (Ms. DiGiovanni): At some point when Dr. Tyma was in your hospital 

room, did anything you found to be inappropriate happen? 

(TT. p. 220-221 ). 

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. 

Q. What else 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. 

Q. Can you describe for me the second incident exactly what happened? 

A. Closed. 

Q. Was the examination room door open or closed? 

A. Yes. 

Q. Were you alone with Dr. Tyma? 

A. Yes. 

Q. And did another incident happen that you found to be inappropriate? 

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 ... 

19 

46a 

Q. And describe for me exactly what happened during this first occasion. 

A. Alone. 

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. I do. And when it happened, I dismissed it as an accident because 

accidents do happen. 

Q. Do you recall the first time? 

A. Yes. 

Q. Two times? 

A. All together, two times. 

Q. How many times did something happen that was inappropriate? 
47a 

I 

I 

20 

testimony of three (3) Physician's Assistants, who would presumably have only testified that 

Dr. Tyma admitted that he did see each of these women by himself at various times. Therefore, 

R- ~ testified that they were alone with Dr. Tyma when the touchings occurred, and 

occur. As noted above, all of the women identified regarding this issue, with the exception of 

of the incident(s) can only establish that they did not witness the incident, not that it did not 

defendant did not do what he is accused of. However, a person who was not present at the time 

The entire point of an exculpatory witness is to exculpate - that is, to prove that the 

(T.T. pp. 38, 41). 

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. 

... Q. How long were you in the exam room before someone came in? 

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. Can you tell me as best you can how the physical exam progressed. 

Q. C"'1s. DiGiovanni): At that point in time, after you had this discussion with 

Dr. Tyma, he performed a physical exam on you? 

paying attention to what was occurring: 

R-C- testified that though a Physician Assistant was in the room, she was not 

(T. T. pp. l 54, 156- l 57). 
testimony of five (5) patients, M. M- P- H ••• 191 GIII-L., R9IIII 

Similarly, the Defendant argues that counsel was ineffective for failing to present the 

counsel was not ineffective for failing to present it. 

Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. 1998), their testimony was not relevant and 

regarding any material facts or made any facts at issue more or less probable, see 

21 

48a 

Manager Margaret Slagel would not have established any material facts or reasonable inferences 

testimony of Physician Assistants Kelly Hefner, Allison Karan and Natalie Cresenze and Office 

upheld by our Superior Court on the direct appeal of this matter. Because the proposed 

conduct did not occur - and in fact the sufficiency and weight of the evidence have already been 

Manager did not witness or hear reports of any inappropriate conduct does not mean that the 

2d 542 ( Pa.Super. 2005). emphasis added. The fact that the Physicians Assistants and Office 

that "an absence of evidence is not evidence of absence." Commonwealth v. Heilman, 867 A. 

In Commonwealth v. Heilman, 867 A.2d 542 (Pa.Super. 2005), our Superior Court held 

• 

is similarly not relevant. 

that Ms. Slagel was present with the Defendant for every single patient interaction, her testimony 

inappropriate behavior from the Defendant's patients. Again, unless the Defendant can prove 

Slagel. The Defendant now asserts that she would testify that she never heard any compJaints of 

A similar scenario ensues with the proposed testimony of Office Manager Margaret 

not the case - then their testimony is not exculpatory and in fact, not even relevant to the charges. 

single time he saw a patient and he was never alone with any patient - which he has admitted is 

the Defendant can prove that he was accompanied by one of these Physician's Assistants every 

nothing inappropriate occurred when they were in the room, is essentially meaningless. Unless 
22 

~a 

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 

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 

L. did testify as character witn To the extent that the esses on the Defendant's behalf. 

R9 and Lii Liii who would have testified that the Defendant did not touch them 

inappropriately and that touching the breast was necessary for the exam. This Court notes that 

four (4) of these women - Mii M9, L. G--LII, ~ Riii and 1111 
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. 

Co,mmonwealth v. Petri 110, 19 A.2d 288, 295 (Pa. 1941 ). 

The Defendant now argues that ~ C-, EIIII G- Diii Mlll9 and 

A- M .. should have been impeached with their prior convictions for bad checks 

(D- MIIII and Emil G9t), retail theft (~ C- and A9I M-), 

disorderly conduct (R- C- and A-MIIII) and harassment (R- C-). 

A careful review of the record reveals that E. G- was impeached with her prior 

convictions during cross-examination (See Trial Transcript, p. 63), however, the remaining 

convictions were not mentioned. 

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." 

'collateral' matters, and a collateral matter is one which has no relationship to the case at trial." 

23 

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incomprehensible claim, with the fact that L9 H- had a fever of 103 degrees during one 

of her examinations. These claims are meritless. 

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 
24 

51a 

attempt it. This claim is meritJess. 

matter and would not have been permitted. Therefore, counsel was not ineffective for failing to 

such, all of these various matters would have been considered impeachment on a collateral 

a fever, is irrelevant to the claims at issue in trial, namely whether they were assaulted or not. As 

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 

collarbone" (Petitioner's Concise Statement of Matters Complained of on Appeal, p. 13-14). 

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 

symptoms of depression or mental illness in the past, that they received pain medication from 

immediately after the assaults or stopped to schedule a follow-up appointment, that they had 

"impeached" with various items in their medical records including whether they left the office 

Additionally, the Defendant argues that several of the victims should have been 

present it. 

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 

this Court listened to the victims' testimony and made determinations regarding that testimony. 

testimony regarding that victimization is not believable ab initio, In its capacity as fact-finder, 

The existence of a prior conviction does not mean that a person cannot be victimized or that her 
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 

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 Def end 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. 

preliminary hearing and in the Courthouse hallways. He makes no specific claims of 

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 
26 

53a 

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 

L.R. ". (Petitioner's Concise Statement of Matters Complained of on Appeal, p. 18). This claim 

is simply meritless. Whether or not the Defendant wanted 11/1 R. 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. 

If this were the case, certainly every criminal defendant would do the same. The Defendant 

already testified that his touching of L. R. 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 

The Defendant also argues that trial counsel failed to subpoena the medical records of L- S- and M. 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 

evidence that, in preparing his defense Petitioner included L.R. in the list of 

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 
and so counsel will not be found ineffective in this regard. 

counsel subpoenaed the Jameson Hospital records, the result of the trial would not have changed, 

Heilman, supra ("an absence of evidence is not evidence of absence"). Even had defense 

patients were touched inappropriately does not mean that the touching did not occur. See 

Insofar as the Defendant wrote his own records, the absence of any indication that the 

(T. T. p. 409). 

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. 

information: 

conclusion of trial, the Defendant's medical records are unlikely to contain any unfavorable 

on a collateral matter and would thus be improper. Moreover, as this Court pointed out at the 

Complained of on Appeal, p. 10-12). As with issue 6, above, this would constitute impeachment 

at the hospital the day of the exam in question." (Petitioner's Concise Statement of Matters 

the appointment and would have controverted her trial testimony that she made the appointment 

follow-up appointment which would have required the patient to call the Wexford office to make 

that she never laid down during the examination in question" and that "Dr. Tyma recommended a 

27 

54a 

down in order for Dr. Tyma to conduct his examination thus controverting L.S. 's trial testimony 

purpose for which the Defendant requests the chart - to prove "that the patient had to be lying 

such, those records should already have been under the Defendant's control. Moreover, the 

appointment which took place at the hospital; the Defendant did not see her as an inpatient. As 

New Castle. At trial, Ms. S- testified that she saw the Defendant on one occasion at an 
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 

SS a 

Essentially what the Defendant is saying is that because other women's medical records 

contained impeachment evidence (though whether it is true impeachment evidence is 

questionable, see above), Mir J. S.'s medical records must necessarily also contain 

impeachment evidence. This is not a sufficient basis, but is rather an offensive generalization 

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. 

Appeal, p. 19). 

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 

chart of M.J.S. before trial." (Petitioner's Concise Statement of Matters 

The Defendant also argued that counsel was ineffective for failing to "obtain the medical 
29 

56a 

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 
30 

57a 

Dated: May 12, 2016 

affirmed. 

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 

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. 

arguments and, ultimately, that he presented the best defense he could with the facts he was 

examinations, both on direct and cross-examination, that he made appropriate and effective 

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