J-S13020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DOUGLAS EDWARD MATTSON Appellant No. 890 WDA 2014

Appeal from the PCRA Order May 2, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000740-2008

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J. MEMORANDUM BY MUNDY, J.: FILED JUNE 02, 2015 Appellant, Douglas Edward Mattson, appeals from th e May 2, 2014 order denying his petition filed pursuant to the Po st Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful c onsideration, we affirm. The trial court summarized the procedural history o f this case in its May 2, 2014 opinion as follows.

On September 10, 2008, [Appellant] appeared before the Honorable Ernest J. DiSantis, Jr., for a trial by jury. On September 12, 2008, [Appellant] was found not guilty of Rape of Child and Involunta ry Deviate Sexual Intercourse with a Child. 1 [The victim was Appellant’s nine-year-old step-daughter. ] Judge DiSantis declared a mistrial out of manifest necessity, as the jury was hung on the remaining counts of Aggravated Indecent Assault of a Child, Endangering the Welfare of Children, Corruption of Minors and three Counts of Indecent Assault. 2 [Appellant] did not seek a new trial. Rather, [Appellant] appeared before the Honorable JohnJ-S13020-15

- 2 - Garhart on January 8, 2009 and entered a plea of nolo contendere to Endangering Welfare of Children and Indecent Assault. 3 Together with [Appellant]’s plea, Judge Garhart ordered a State Board Assessment regarding [Appellant]’s Sexual Offender status pursuant to 42 Pa.C.S. § 9794. On April 28, 2009, [Appellant] was provided Notice to Defendant of Duty to Register Pursuant to 42 Pa.C.S. § 9791. That same day, [Appellant] was sentenced to an aggregate term of incarceration of three (3) to ten (10) years. [Appellant] then filed a Motion for Modification of Sentence on May 8, 2009, and said Motion was denied by Judge DiSantis on May 26, 2009. On June 24, 2010, [Appellant] filed a Motion for Post Conviction Collateral Relief, alleging the rein new facts pertaining to the credibility of a key witness that testified against him. [Appellant] al so requested that he be permitted to withdraw his no contest plea. On August 25, 2010, Judge DiSantis granted the requested relief. Subsequently, the Commonwealth submitted a motion to Judge DiSantis, asking that all charges against [Appellan t] be reinstated. Judge DiSantis granted the Commonwealth’s Motion on November 2, 201[0]. On November 18, 201[0], [Appellant] proceeded to a jury trial []. [Appellant] was convicted of Aggravated Indecent Assault of Child, Endangering Welfare of Children, Corruption of Minors, and three (3) counts of Indecent Assault. By Order of November 22, 2010, th[e trial c]ourt directed the Sexual Offenders Assessment Board to perform an assessment of the [Appellant], again pursuant to 42 Pa.C.S. § 9794. [Appellant] appeared before th[e trial c]ourt for a Sexually Violent Predator Hearing and sentencing on July 7, 2011. Based upon the testimony of Branda Manno, member of the Sexual Offenders Assessment Board, and reports submitted on the record at that hearing , [] Appellant was adjudicated a Sexually Violent Predator (hereinafter “SVP”).J-S13020-15

- 3 - [Appellant] filed a Motion for Post-Sentence Relief on July 15, 2011, requesting that th[e trial c]ourt reconsider his SVP status. After a hearing on the matter, th[e trial c]ourt denied [Appellant]’s Post Sentence Motion to Reconsider Sentence. On February 21, 2012, [Appellant] filed a Petition for Post Conviction Collateral Relief requesting that his right to direct appeal be reinstated nunc pro tunc . [Appellant] alleged and th[e trial c]ourt agreed that [Appellant]’s trial counsel failed to file a direct appeal per [Appella nt]’s direct appeal rights and on April 2, 2012, [Appella nt] filed a Notice of Appeal. On Appeal [Appellant] raised the following issues: (1) whether the trial court erred in finding that he met the criteria for a SVP under Megan’s Law, (2) whether the trial court erred in not excluding the testimony of Richard Beitzel, the victim’s mother’s paramour. On December 21, 2012, the Superior Court affirmed th[e trial c]ourt’s judgment of sentence. The Superior Court held that the issue regarding the testimony of Richard Beiztel was waived for purpose s of appellate review. [1] On November 15, 2013, [Appellant] filed the instant pro se PCRA Petition. On November 30, 2013, William J. Hathaway, Esq., was appointed PCRA counsel. Attorney Hathaway submitted a Supplemental PCRA Petition on behalf of [Appellant] on December 10, 2013. Therein, Attorney Hathaway argues that trial counsel, Attorney Nicole Sloane, was ineffective for: (1) failing to object to the Commonwealth’s leading questions posed to the victim on direct examination, and (2) for failing t o object to the testimony of Richard Beitzel as irrelevant. The Commonwealth filed its Response to [Appellant]’s Supplemental PCRA on December 24, 2013.

____________________________________________ 1 Commonwealth v. Mattson , 64 A.3d 34 (Pa. Super. 2012) (unpublished memorandum).J-S13020-15

- 4 - An evidentiary hearing and oral argument on [Appellant]’s PCRA claims was held on February 25, 2014. 1 18 Pa.C.S. §[§] 3121(c) and [] 3123(b).

2 18 Pa.C.S. §[§] 3125(b), [] 4304, [] 6301, and [] 3126.

3 18 Pa.C.S. §[§] 4304(a)(1) and [] 3126(a)(7). Trial Court Opinion, 5/2/14, at 1-3 (some footnotes in original). On May 2, 2014, the PCRA court filed an order and opinion, denying the requested relief and dismissing Appellant’s PCR A petition. On May 30, 2014, Appellant filed a timely notice of appeal. 2 On appeal, Appellant raises the following question s for our review.

A. Whether [] Appellant was afforded ineffective assistance of counsel due to trial counsel’s failur e to object to pervasive leading questions posed by the Commonwealth to the alleged victim during her trial testimony? B. Whether [] Appellant was afforded ineffective assistance of counsel due to trial counsel’s failur e to object to the admission of trial testimony from Commonwealth witness Richard Beitzel and in otherwise failing to preserve said claim for direct appellate review? Appellant’s Brief at 2.

____________________________________________ 2 Appellant and the PCRA court have complied with Pe nnsylvania Rule of Appellate Procedure 1925. The PCRA court reference d its May 2, 2014 opinion as containing the reasons for its rulings r elative to Appellant’s issues on appeal.J-S13020-15

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We note the following principles, which guide our c onsideration of an appeal from the denial of PCRA relief.

On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court’s findings are supported by the record and without legal error. [Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in th e light most favorable to the prevailing party at the PCRA court level. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court. However, this Court applies a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Medina , 92 A.3d 1210, 1214-1215 (Pa. Super. 2014) ( en banc ) (internal quotation marks and citations omitted), appeal granted , 105 A.3d 658 (Pa. 2014). Further, in order to be e ligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his

conviction or sentence arose from one or more of th e errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neith er previously litigated

nor waived. Id. § 9543(a)(3). In both of his issues, Appellant alleges ineffectiv eness of trial and direct appeal counsel. When reviewing a claim of i neffective assistance of counsel, we apply the following test, first articul ated by our Supreme Court

in Commonwealth v. Pierce , 527 A.2d 973 (Pa. 1987)

.

When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Counsel cannot be found ineffective for failure to assert a baseless claim.J-S13020-15

- 6 - To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) t he claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel’s ineffectiveness prejudi ced him.

... [T]o demonstrate prejudice, appellant must show there is a reasonable probability that, but fo r counsel’s error, the outcome of the proceeding woul d have been different.

Commonwealth v. Michaud , 70 A.3d 862, 867 (Pa. Super. 2013) (internal quotation marks and citations omitted). “Failure t o establish any prong of

the test will defeat an ineffectiveness claim.” Commonwealth v. Birdsong , 24 A.3d 319, 330 (Pa. 2011). In his first issue, Appellant alleges ineffective assistance of trial counsel for her failure to object to leading questi ons posed by the Commonwealth to the victim during her direct testim ony at trial. Appellant’s

Brief at 4. “The Petitioner was afforded ineffecti ve assistance of counsel in that defense counsel did not object to the pervasiv e and prejudicial level of leading questions that were posed to the minor alle ged victim[] during her

direct examination.” Id. at 5. The trial court determined that Appellant failed to establish the second prong of the test fo r counsel ineffectiveness because counsel articulated a reasonable strategy f or declining to object to the admittedly leading questions. PCRA Court Opini on, 5/2/14, at 4.J-S13020-15

- 7 - Relating to the reasonable basis prong, [g]enerally , where matters of strategy and tactics are concerned , counsel’s assistance is deemed constitutionally effective if [s]he chose a particular course that h ad some reasonable basis designed to effectuate h[er] client’s interests. Courts should not deem counsel ’s strategy or tactic unreasonable unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than th e course actually pursued. Also [a]s a general rule, a lawyer should not be held ineffective without first having an opportunity to address the accusation in some fashion.... The ultimate focus of an ineffectiveness inquiry is always upon counsel, and not upon an alleged deficiency in the abstract.

Commonwealth v. Koehler , 36 A.3d 121, 132 (Pa. 2012) (internal quotation marks and citations omitted). The PCRA court summarized trial counsel’s explanat ion as follows.

As to the issue of leading questions posed to the victim, [trial counsel] stated that the victim was young and had a significant speech impediment. Based on these circumstances, [trial counsel] felt that [the] Assistant District Attorney[]’s leading questions were appropriate and she feared alienatin g the jury if she objected to or complained about the leading nature of the questions. [Trial counsel] a lso indicated that she did not want to highlight issues in the minds of the jurors or indicate that there was testimony that the defense did not want the jury to hear by objecting. Trial Court Opinion, 5/2/14, at 3; see N.T., 2/25/14, at 11-13. The PCRA court found trial counsel’s testimony credible and her trial strategy in this regard sound. Id. at 4. Appellant argues to the contrary that counsel’s “e xplanation does not reflect any sound strategic decision as the mere ra ising of objections toJ-S13020-15

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leading questions would not serve to denigrate the witness capacity but instead is merely intended to curtail and impugn th e conduct of the examining counsel.” Appellant’s Brief at 6. We co nclude the PCRA court’s findings are supported by the record and its legal conclusion relative to the soundness of trial counsel’s decision not to object correct. Confronting a similar challenge to trial counsel ineffectiveness for failing to object to leading questions posed to a minor witness, this Co urt held as follows.

Moreover, children are easily intimidated by the courtroom setting, and a trial judge should display a certain tolerance for direct, succinct, and even leading questions. See , Commonwealth v. Willis , 552 A.2d 682 n. 3 ([Pa. Super.] 1988), allocatur denied , 559 A.2d 527 ([Pa.] 1989) (children should be asked direct rather than convoluted or compound questions during examination). Thus, it was not unreasonable for counsel to avoid repetitious objections, knowing that the trial judge was allowi ng the Commonwealth’s attorney latitude.

Commonwealth v. Polston , 616 A.2d 669, 678 (Pa. Super. 1992) (parallel citations omitted), appeal denied , 626 A.2d 1157 (Pa. 1993). Based on the foregoing, we conclude that Appellant failed to establish that trial counsel’s decision not to object to the Commonwealth’s leading questions had a “reasonable basis designed to effec tuate h[er] client’s

interests.” Koehler , supra. Therefore, we discern no error or abuse of discretion by the PCRA court in dismissing Appellan t’s PCRA petition relative

to this claim.J-S13020-15

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Appellant next claims trial counsel was ineffectiv e for failing to object to the testimony of Commonwealth witness, Beitzel, and otherwise preserve the issue for direct appeal. Appellant’s Brief at 6. Beitzel was the paramour of Appellant’s wife, who is the victim’s mother. A ppellant’s Brief at 6. “The introduction of his testimony in the Commonwealth’s case was extraneous, irrelevant and not admissible as an element of proo f and served to prospectively confuse and distract the jury to the detriment of [Appellant] through the introduction of a superfluous and irrel evant issue.” Id. at 8-9. 3 In her opening comments to the jury, trial counsel suggested that the victim’s allegations may have been fabricated at th e instigation of her

____________________________________________ 3 Appellant also claims direct appeal counsel, Tina M. Fryling, Esquire, was ineffective for failing to preserve this issue on d irect appeal. On direct appeal, this Court found Appellant’s issue waived f or failure to include it in his Rule 1925(b) statement. Mattson , supra at 14. Appellant alleges, however, the following.

Moreover, upon review of the case record, not only was said claim not preserved in the 1925(b) statement as cited by the appellate court, the clai m would have been waived as well due to the failure t o preserve the claim for appeal either through timely objection at trial or inclusion in a post-sentence motion, neither of which was undertaken on behalf o f [A]ppellant in this case. Appellant’s Brief at 3. Because of our resolution of Appellant’s claim of ineffective assistance by trial counsel, infra , we do not reach this portion of Appellant’s layered ineffectiveness of counsel clai m. See Commonwealth v. Lopez , 854 A.2d 465, 469 (Pa. 2004) (recognizing a layer ed ineffectiveness claim begins with an assessment of trial counsel’s performance and a failure to establish ineffectiven ess of trial counsel defeats the entire claim).J-S13020-15

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mother, Appellant’s wife, to “facilitate [Appellant ’s] removal from the home and permit her to engage in another relationship wi thout that impediment.” Appellant’s Brief at 7; see N.T., 11/18/10, at 28-2 9. Trial counsel did not mention Beitzel as the object of that motivation in her opening or in crossexamination of other Commonwealth witnesses. The C ommonwealth called

Beitzel in its case in chief to establish that he f irst became acquainted with Appellant’s wife several months after the date of t he alleged sexual assault.

See N.T., 11/19/10, at 4-5. 4

____________________________________________ 4 The Commonwealth notes that Beitzel’s “testimony w as brief and limited in scope.” Commonwealth Brief at 1. The direct testi mony consisted of substantially the following.

[DISTRICT ATTORNEY] Q. And with whom do you live? [Beitzel] A. [A.R. (victim’s mother)], my girlfriend [and my children.] Q. All right. And, Richard, when did you first start talking to [A.R.]?

... A. Roughly around the beginning of March of 2008. Q. And how did you start your communication with [A.R.]? A. Through Lavalife chat. Q. Through a chat site? A. Yes. Q. All right, did you know [A.R.] before the beginning of March of 2008? A. No. Q. Did you know [Appellant] before? A. No. Q. Where were you living at the time you were talking to [A.R.]? (Footnote Continued Next Page)J-S13020-15

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The PCRA court concluded that Appellant failed to establish the third,

i.e. , the prejudice, prong of the test for counsel’s in effectiveness. Trial Court Opinion, 5/2/14 at 4. “With or without [] Beitzel’ s testimony, the result in this matter would have been the same considering al l the testimony presented in this case, including [Appellant’s] own testimony that he was

naked in bed with the victim.” Id. Our Supreme Court has recently clarified the nature of a PCRA petitioner’s burden to show prejudice from actions or inaction of counsel. “To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s unpr ofessional errors, the result of the proceedings would have been different . [A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding.” Commonwealth v. Spotz , 84 A.3d 294, 312 (Pa. 2014) (internal quotation marks and citations omitted).

However, [] the test for prejudice in the ineffectiveness context is more exacting than the test for harmless error, and the burden of proof is on (Footnote Continued) _______________________

A. Bucyrus, Ohio. Q. And how long had you been living in Ohio? A. Roughly around six years. Q. You started talking to [A.R.] in March of 2008. When did you actually meet her face-to-face? A. I met her probably around the 5 th of April. N.T., 11/19/10, at 4-5.J-S13020-15

- 12 - the defendant, not the Commonwealth. As a general and practical matter, it is more difficult for a defendant to prevail on a claim litigated through t he lens of counsel ineffectiveness, rather than as a preserved claim of trial court error.

Id. at 315 (internal quotation marks and citations omi tted). Upon careful review of the record, we agree with t he PCRA court that even had an objection to Beitzel’s testimony been s ustained, it is unlikely

the outcome would have been different. See Spotz , supra . Beitzel’s testimony was short and could have not have induced confusion or distraction in the jury to make them lose focus of the issues in this case. The testimony of the victim and other Commonwealth witnesses makes it more than reasonably probable the jury’s verdict wo uld be the same. See generally

N.T., 11/18-19/10. For these reasons, we conclude the PCRA

court committed no error or abuse of discretion in dismissing Appellant’s PCRA petition relative to this claim. Having determined the PCRA court properly dismisse d Appellant’s PCRA petition for his failure to meet his burden to establish trial counsel was ineffective, we affirm the May 2, 2014 order.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/2/2015