J-S69010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BARRY LEE RHODES

Appellant No. 469 MDA 2016

Appeal from the PCRA Order Entered November 3, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-0000013-2011

BEFORE: STABILE, DUBOW, and PLATT,*JJ.

MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2017

Appellant, Barry Lee Rhodes, appeals nunc pro tunc from the 

November 3, 2015 order denying in part the relief sought in Appellant’s 

petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-46. We affirm. 

On July 15, 2011, a jury found Appellant guilty of numerous charges1

arising from his sexual victimization of two minor girls, K.L.E. and K.M.E., 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 The jury found Appellant guilty of nine counts of indecent assault of a 

person less than 13 years of age (18 Pa.C.S.A. § 3126(a)(7)), one count of 

indecent assault of a person with a mental disability (18 Pa.C.S.A. 

§ 3126(a)(6)), two counts of attempted rape of a child and one count of 

rape of a child (18 Pa.C.S.A. §§ 901(a) and 3121(c)), one count one count 

of aggravated indecent assault of a person less than 13 years of age 

(Footnote Continued Next Page)
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who were sisters and Appellant’s great-nieces. On September 29, 2011, the 

trial court found Appellant to be a sexually violent predator (“SVP”) and 

sentenced him to an aggregate 21 to 42 years of incarceration. The trial 

court denied Appellant’s timely post-sentence motion on October 11, 2011. 

Appellant filed a timely notice of appeal on November 10, 2011, and this 

Court affirmed the judgment of sentence on October 1, 2012. Appellant did 

not seek allowance of appeal to the Pennsylvania Supreme Court. He filed a 

timely pro se PCRA petition on September 25, 2013. Appointed counsel filed 

an amended petition on May 4, 2015. The PCRA court conducted a hearing 

on July 7, 2015. On November 3, 2015, the PCRA court vacated Appellant’s 

conviction for one of the counts of indecent assault of a person less than 13 

years of age (18 Pa.C.S.A. § 3126(a)(7)), but otherwise denied relief. The 

PCRA court’s order did not affect the aggregate sentence. 

Due to an administrative oversight in PCRA counsel’s office, Appellant 

did not file a timely appeal. On February 23, 2016, Appellant filed a second 

PCRA petition, seeking reinstatement of his right to appeal. The second 

petition alleged that counsel effectively abandoned Appellant, and that 

Appellant directed counsel to file a petition as soon as Appellant learned of 

counsel’s abandonment. On March 1, 2016, the PCRA court entered an 

(Footnote Continued) _______________________

(18 Pa.C.S.A. § 3125(a)(7)), one count of involuntary deviate sexual 

intercourse with a person with a mental disability (18 Pa.C.S.A. 

§ 3123(a)(5)), and two counts of corruption of minors (18 Pa.C.S.A. 

§ 6301(a)(1)). 
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order reinstating Appellant’s right to appeal from the November 3, 2015 

order. The PCRA court relied on Commonwealth v. Bennett, 930 A.2d 

1264 (Pa. 2007), in which our Supreme Court held that a second or 

subsequent PCRA petition can be timely under § 9545(b)(1)(ii)2if PCRA 

counsel abandons the petitioner and if the petitioner pleads and proves that 

he or she could not have learned of counsel’s abandonment by the exercise 

of diligence. In this case, Appellant pled and proved counsel’s abandonment 

to the PCRA court’s satisfaction. The Commonwealth did not oppose 

Appellant’s second petition. We therefore conclude the PCRA court had 

jurisdiction to entertain the second petition and reinstate Appellant’s right to 

appeal from the November 3, 2015 order. 

Appellant raises three issues for our review: 

I. Did the trial court err in holding that trial counsel was not 

ineffective for failing to object to the prosecutor’s repeated 

statements of personal opinion, calling [Appellant] a liar, 

and the police truth tellers, for failing to request curative 

instructions, and for failing to raise and brief this issue on 

appeal? 

II. Did the trial court err in finding that trial counsel was not 

ineffective for failing to object to Dr. Hoshauer’s 

statements that she had examined three siblings, that she 

____________________________________________

2

 The cited section provides an exception to the jurisdictional one-year time 

bar of § 9545(b)(1) where the petitioner pleads and proves that “the facts 

upon which the claim is predicated were unknown to the petitioner and could 

not have been ascertained by the exercise of due diligence.” 42 Pa.C.S.A. 

§ 9545(b)(1)(ii). 
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asked ‘who told first?’ and for failing to object to the 

admission, as substantive evidence, of [one of the 

victims’] statements to Dr. Hoshauer, naming her alleged 

abuser and describing the alleged abuse, and her actions 

in response to the alleged abuse? 

III. Did the trial court err in finding that trial counsel was not 

ineffective for failing to effectively and properly impeach 

[one of the victims]. with her prior inconsistent statements 

to Dr. Hoshauer and Trooper [Derek A.] Koch?

Appellant’s Brief at 4. 

We must determine whether the record supports the PCRA court’s 

findings and whether its decision is free of legal error. Commonwealth v. 

Pitts, 981 A.2d 875 878 (Pa. 2009). First, Appellant argues counsel was 

ineffective for failing to object to the prosecutor’s remarks during his 

opening statement and closing argument. This claim is cognizable under 

§ 9543(a)(2)(ii) of the PCRA. To succeed, a petitioner must plead and prove 

(1) that the underlying claim is of arguable merit; (2) that counsel had no 

reasonable strategic basis for his or her action or inaction; and (3) that 

counsel’s mistake prejudiced Appellant, i.e., that there is a reasonable 

probability that the outcome of the proceeding would have been different but 

for counsel’s error. Commonwealth v. Bridges, 886 A.2d 1127, 1131 (Pa. 

2005). 

“A prosecutor’s remarks are fair if they are supported by evidence or 

contain inferences reasonably derived from that evidence.” 

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005) (citing 

Commonwealth v. Carter, 643 A.2d 61, 75 (Pa. 1994). “[P]rosecutorial 
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misconduct does not occur unless the unavoidable effect of the comments at 

issue was to prejudice the jurors by forming in their minds a fixed bias and 

hostility toward the defendant, thus impeding their ability to weigh the 

evidence objectively and render a true verdict.” Id. (citing Commonwealth 

v. Paddy, 800 A.2d 294, 316 (Pa. 2002)). “Due to the nature of a criminal 

trial, both sides must be allowed reasonable latitude in presenting their 

cases to the jury. Id. “A prosecutor’s comments must be reviewed in the 

context in which they were made.” Id. Mere “oratorical flair” during a 

prosecutor’s summary of the evidence of the defendant’s criminal acts is not 

misconduct. Commonwealth v. Chmiel, 889 A.2d 501, 538 (Pa. 2005), 

cert. denied, 549 U.S. 848 (2006). 

Our Supreme Court has held that “[i]t is improper for a prosecutor to 

offer his or her personal opinion as to the guilt of the accused or the 

credibility of any testimony.” Commonwealth v. Hutchinson, 25 A.3d 

277, 307 (Pa. 2011). “However, it is well within the bounds of proper 

advocacy for the prosecutor to summarize the facts of the case and then to 

ask the jury to find the accused guilty based on those facts.” Id. 

The prosecutor began his opening statement as follows: 

There is a famous novel of the 19th Century, which [sic] 

two men sit down and one man discusses the heavy weight, the 

binding power of his lies and misdeeds. 

In this case, ladies and gentlemen, you will see that the 

defendant cannot escape his. 

N.T. Trial, 7/13/11, at 53. He continued: 
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At some point in time, ladies and gentlemen, you’re going 

to hear from a series of troopers. Troopers who, during that 

time period, in the early stages of the investigation, interviewed 

the defendant. You’ll hear how the conversation with Trooper 

George Forsyth, it initially started out as complete denials, 

turning into perhaps maybe I touched them when we were 

wrestling, comments on behalf of the defendant. 

You’ll then hear how the defendant met with Trooper Tom 

Waters and how what originally started with denials there turned 

into comments and admissions regarding certain children 

performing oral sex on him, specifically [K.M.E.]. 

You’ll hear about how he justified the behavior. Pushed 

the blame onto these children. And then you’ll hear an interview 

with Trooper Gerow and the defendant, where, again, the blame 

lies somewhere else. 

Id. at 55. 

Near the end of his opening, the prosecutor said: 

There’s no question, ladies and gentlemen, that as this 

case moves on, as you hear from all these people, it’s going to 

be clear, from what I said at the start of my statement here 

before you today, that time may have passed, but the defendant 

cannot escape his lies and misleads [sic], much like that person 

in that conversation in that 19th Century novel. 

Id. at 58. 

Appellant claims the prosecutor committed misconduct by expressing 

his personal opinion on Appellant’s lack of credibility. Trial counsel explained 

at the PCRA hearing that the prosecutor did not express, during his opening 

statement, a personal belief that Appellant was a liar. N.T. Hearing, 7/7/15, 

at 9-10. 

Our review of the prosecutor’s opening statement confirms that the 

prosecutor simply discussed what he believed evidence would show: that 
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Appellant gave inconsistent statements regarding the alleged acts, and that 

Appellant did not accept blame for the alleged acts. These comments did 

not express the prosecutor’s personal belief as to Appellant’s credibility. 

Further, we believe the reference to the 19th century novel was mere 

rhetorical flair. Appellant’s argument that trial counsel should have objected 

to the prosecutor’s opening statement lacks arguable merit. 

During closing, the prosecutor again reviewed the evidence of 

Appellant’s alleged dishonesty: 

Now, this defendant—I told you in the beginning, the 

1880s novel about a man that is weighed down by his burdens. 

Ladies and gentlemen, this is that man. He has told so many 

lies he can’t even keep them straight. 

First of all, it was nothing. I didn’t do anything. And then 

all of a sudden it turned into, well, maybe I touched them when 

we were wrestling. And then it turned into, well, there was this 

time, I thought maybe I was dreaming about [K.M.E.] giving me 

a blowjob. But then I woke up and she was just masturbating 

me. And then, no, you know what happened? When I think 

about it, she was sucking on my penis. 

And then yesterday on the stand—again, your recollection 

of the testimony, your recollection, I don’t even think he kept 

that straight on the stand yesterday as to whether or not she 

was sucking him or whether or not she was masturbating him. 

Regardless, he asks you to believe that as he’s sleeping, 

[K.M.E.] just comes in and decides, it’s time to masturbate Uncle 

Barry. I argue to you that that’s not credible. 

N.T. Trial, 7/15/11, at 350-51. The prosecutor continued,

The statements of the defendant are damning. To believe 

that [K.M.E.] is so possessed with whatever of the defendant, 

some attraction to the defendant or need to be with the 

defendant, that as a small child she goes in and sucks on his 

penis? And he says himself, I didn’t call. I didn’t tell anybody. 
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He’s concerned about being extorted. Well, did you call the 

police? No. 

Ladies and gentlemen, I submit to you that that’s not 

credible. 

He told these troopers glimmers. Through so many lies, 

these troopers told you the glimmers of the truth. His world and 

the entire defense has pushed the blame onto others. 

Id. at 354-55. Finally, 

I told you at the beginning about that novel. Since I think 

you have a significant understanding at this point of this case, 

let me shed a little more light on that novel. 

It was written by Charles Dickens in 1843. As those two 

men spoke, a guy by the name of Ebenezer said to Jacob Marley, 

speak some peace to me, shocked by the image of his longtime 

friend under heavy weights and tethers. Jacob Marley said, I 

can’t, I can’t. Let it be a warning to you but I can’t. Every one 

of these weights I crafted myself with the lies and misdeeds I did 

in life. 

And the defendant is before you now under the weight of 

his own misdeeds. 

Id. at 359. 

At the conclusion of the prosecutor’s closing argument, defense 

counsel moved for a mistrial, arguing the prosecutor called Appellant a liar. 

Id. at 361-62. The trial court denied the motion, and defense counsel did 

not move for a curative instruction. Appellant now claims defense counsel 

was ineffective for failing to move for a curative instruction. We disagree. 

In order to provide context, we have quoted the prosecutor’s closing at 

greater length than did Appellant in his brief. In our view, the prosecutor 

permissibly argued Appellant’s guilt based on the facts of the case. 
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Appellant gave statements to the police and testified at trial. In doing so, he 

ran the risk that the prosecutor would use his statements against him. The 

prosecutor did not offer a blanket assertion that Appellant was a liar. 

Rather, the prosecutor argued that some of Appellant’s exculpatory 

statements were unworthy of belief in light of other facts in evidence. 

Appellant’s assertion of ineffective assistance fails because the underlying 

issue lacks arguable merit. 

Next, Appellant argues trial counsel was ineffective for failing to object 

on several occasions to the testimony of Dr. Cathy Hoshauer, a pediatrician. 

The Commonwealth presented Dr. Hoshauer as an expert witness. Appellant 

argues that Dr. Hoshauer’s hearsay account of one of the victims’ 

statements was admissible only as impeachment evidence. In addition, 

Dr. Hoshauer testified that the two victims were among three siblings she 

examined. Appellant argues the reference to the third sibling was improper 

and prejudicial. The Commonwealth did not charge Appellant with any 

criminal wrongdoing toward the third sibling. 

The Commonwealth and the PCRA court note that the victim’s 

statements to Dr. Hoshauer are admissible under Pa.R.E 803(4): 

(4) Statement Made for Medical Diagnosis or 

Treatment. A statement that:

(A) is made for--and is reasonably pertinent to--medical 

treatment or diagnosis in contemplation of treatment; and

(B) describes medical history, past or present symptoms, 

pain, or sensations, or the inception or general character of the 
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cause or external source thereof, insofar as reasonably pertinent 

to treatment, or diagnosis in contemplation of treatment.

Pa.R.E. 803(4). 

The record reflects that Dr. Hoshauer examined the two victims and 

reached a diagnosis of child abuse for one of them. N.T. Trial, 7/13/11, at 

136-37.3 

Q. After going through your interview with [K.L.E.], 

reviewing her, did you ultimately reach a diagnosis? 

A. Yes. 

Q. What was that diagnosis? 

A. Child Abuse. 

. . . 

Q. When you say child abuse, can you explain what you 

mean by child abuse? 

A. The definition of child sexual abuse is that a child, 

from birth to 18, is the victim of inappropriate sexual contact by 

someone else for their own sexual gratification. That’s the 

definition of child sexual abuse. 

Id. In addition, Dr. Hoshauer offered the following: 

Q. Dr. Hoshauer, when you performed this exam, what 

was your goal in conducting the exam? What’s –

A. To be sure that the child’s fine. Because, as I 

mentioned, the vast majority of children that I see have a 

normal exam. The reasons why I do these exams is not so 

much, you know, CSI, looking for DNA or anything like that. I 

____________________________________________

3

 The result for the second victim was normal, although that result did not 

exclude criminal conduct. Id. at 141. 
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really just want to help the child to know that they’re fine and 

that they can move on and their bodies are fine. 

Id. at 146. 

Appellant asserts, without citation to any evidence or legal authority, 

that Dr. Hoshauer did not conduct her examination in contemplation of 

treatment, and that the victim’s statements to Dr. Hoshauer are therefore 

not admissible under Rule 803(4). The PCRA court disagreed, and the 

record supports the PCRA court’s decision. Furthermore, statements 

admissible under Rule 803(4) are admissible as substantive evidence. 

Commonwealth v. Fink, 791 A.2d 1235, 1246 (Pa. Super. 2002). Finally, 

as Appellant asserts in support of his third question presented, Dr. Hoshauer 

testified to statements from K.L.E. that were inconsistent with some of the 

statements K.L.E. made at trial. In that sense, Dr. Hoshauer’s testimony 

was helpful to the defense. The PCRA court did not err in rejecting 

Appellant’s argument pertaining to Dr. Hoshauer’s account of the victim’s 

prior statements. 

Appellant also argues that counsel should have objected when Dr. 

Hoshauer discussed portions of the victim’s statement in which the victim 

named Appellant as the perpetrator. Appellant’s Brief at 25. Appellant cites 

pages 130 and 131 of the July 13, 2011 trial transcript. The PCRA court 

acknowledged that statements identifying the alleged perpetrator are not 

admissible under Rule 803(4). PCRA Court Opinion, 11/3/15, at 8 n.7 (see 

Pa.R.E. 803(4), comment: “Statements as to causation may be admissible, 
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but statements as to fault or identification of the person inflicting harm have 

been held to be inadmissible.”). Indeed, the record reflects that the 

prosecutor asked Dr. Hoshauer if the victim told Dr. Hoshauer what occurred 

between the victim and Appellant. N.T. Trial, 7/13/11, at 130. Thus, trial 

counsel should have objected to Dr. Hoshauer’s testimony to the extent that 

it constituted a hearsay identification of Appellant as the perpetrator. 

Regardless, this victim testified at trial and identified Appellant as the 

perpetrator from the witness stand. Appellant had an opportunity to crossexamine her, and the jury was able to assess the credibility of the victim’s 

identification testimony. Under these circumstances, we cannot conclude 

that counsel’s error prejudiced Appellant. 

Next, Appellant argues trial counsel was ineffective for failing to object 

when Dr. Hoshauer mentioned that she examined a third sibling, and that 

she asked one of the victims, “[W]ho told first?” We quote the relevant 

portion of the transcript: 

Q. Specifically in regards to [K.L.E.], what did she 

indicate was the reason she was there? 

A. Okay. She – I had seen her two other siblings prior 

to her. She was the third of the family that I was seeing. So I 

asked her to tell me who told first. That’s how we started the 

conversation. And she explained that [K.M.E.] told first. And 

then I asked her to tell me –

Q If I could just stop you right there. 

[Prosecutor]: Judge, may we approach briefly? 

THE COURT: All Right. 
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(A sidebar discussion was held off the record.) 

N.T. Trial, 7/13/11, at 130. 

At the PCRA hearing, defense counsel stated he did not object to 

Dr. Hoshauer’s mention of the third sibling because the jury could infer that 

the Commonwealth did not charge Appellant with any criminal conduct 

toward her. Appellant offers no substantive argument in response. 

Appellant states, “Dr. Hoshauer should not have been permitted to mention 

examination of a third sister, as this testimony was irrelevant and prejudicial 

to [Appellant]. PCRA counsel does not agree that the jury would simply 

have inferred nothing happened to the third sister.” Appellant’s Brief at 27. 

As noted above, Appellant bore the burden of pleading and proving all three 

prongs of his ineffective assistance of counsel claim including prejudice. 

Appellant does not explain how the mention of a third sister prejudiced his 

case. We cannot conclude that a reasonable exists that the outcome of trial 

would have been different absent Dr. Hoshauer’s mention of a third sister. 

Concerning the “who told first” portion of Dr. Hoshauer’s testimony, 

the record reveals that K.L.E. told Dr. Hoshauer that K.M.E.—who did not 

testify at trial—told first. Appellant does not develop any legal argument on 

this point in his brief, stating only that “Dr. Hoshauer should not have been 

permitted to testify that she asked “who told first,” as though assuming that 

the allegations against [Appellant] were true, and to testify that the answer 

was K.L.E.’s sister, K.M.E., who did not testify at trial.” Appellant’s Brief at 
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27. Appellant never explains how, given the other evidence against him--

including K.L.E.’s testimony and Appellant’s own statements—counsel’s 

timely objection would have altered the outcome of Appellant’s trial. 

Appellant has failed to establish that counsel was ineffective. 

Appellant’s final argument is that trial counsel was ineffective for 

failing to cross-examine K.L.E. about her prior inconsistent statements. As 

Appellant explains in his brief, many of K.L.E.’s prior inconsistent statements 

came into evidence through Dr. Hoshauer’s testimony. Appellant’s Brief at 

29-30. Appellant also argues that K.L.E.’s assertions to Trooper Derek Koch, 

in statements dated April 20, 2001 and June 27, 2001, were inconsistent 

with her trial testimony. Appellant’s Brief at 34-36. 

The record reveals that defense counsel re-called K.L.E. during his 

case-in-chief and examined her on her prior statement that a cousin had 

witnessed some of the abuse. N.T. Trial, 7/15/11, at 310. K.L.E. admitted 

stating that her cousin witnessed some of the abuse. Id. Defense counsel 

then called K.L.E.’s cousin, who denied ever witnessing Appellant abuse 

K.L.E. Id. at 313. Thus, defense counsel did produce evidence of a 

significant inaccuracy in one of K.L.E.’s prior statements. 

At the PCRA hearing, trial counsel testified that he believed the jury 

would give K.L.E. some “leeway” as far as her memory of the events, given 

that the trial took place well after the alleged abuse and given that K.L.E. 

was very young when the alleged abuse occurred. N.T. Hearing, 7/7/15, at 
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24. Counsel also testified that he did not wish to appear to be badgering a 

young witness who was testifying about a traumatic experience that 

occurred when the witness was much younger. Id. at 35. Thus, counsel 

was content to allow the prior inconsistent statements to come in through 

another witness. Id. 

In summary, the record reflects that defense counsel re-called one of 

the victims during the defense’s case-in-chief to highlight a significant 

inaccuracy in one of her prior statements. Other inconsistent statements 

came in through Dr. Hoshauer. Thus, the factual premise of Appellant’s 

assertion of ineffective assistance is not entirely accurate, and counsel 

offered a reasonable basis for declining to cross-examine K.L.E. in detail 

about all of her prior statements. For these reasons, we conclude that 

Appellant’s assertion of counsel’s ineffectiveness lacks merit. 

In summary, we have concluded that Appellant failed to prove that 

defense counsel was ineffective, or that any of counsel’s errors were so 

significant that, but for those errors, the outcome of trial would have been 

different. As explained above, Appellant ultimately admitted to sexual 

contact with K.M.E. We therefore affirm the PCRA court’s order. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2017