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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 the May 2, 2014 

order denying his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm. 

The trial court summarized the procedural history of 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 Involuntary 

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 John 
J-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 therein 

new facts pertaining to the credibility of a key 

witness that testified against him. [Appellant] also 

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 [Appellant] 

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 [Appellant]’s 

direct appeal rights and on April 2, 2012, [Appellant] 

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 purposes 

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 to 

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 PCRA petition. On May 30, 

2014, Appellant filed a timely notice of appeal.2

 On appeal, Appellant raises the following questions for our review. 

A. Whether [] Appellant was afforded ineffective 

assistance of counsel due to trial counsel’s failure 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 failure 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 Pennsylvania Rule of 

Appellate Procedure 1925. The PCRA court referenced its May 2, 2014 

opinion as containing the reasons for its rulings relative to Appellant’s issues 

on appeal. 
J-S13020-15 

- 5 - 

We note the following principles, which guide our consideration 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 the 

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 eligible 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 the errors listed at 42 

Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated 

nor waived. Id. § 9543(a)(3). 

In both of his issues, Appellant alleges ineffectiveness of trial and 

direct appeal counsel. When reviewing a claim of ineffective assistance of 

counsel, we apply the following test, first articulated 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) the 

claim is of arguable merit; (2) counsel had no 

reasonable strategic basis for his or her action or

inaction; and (3) counsel’s ineffectiveness prejudiced 

him. 

... 

[T]o demonstrate prejudice, appellant must 

show there is a reasonable probability that, but for 

counsel’s error, the outcome of the proceeding would 

have been different. 

Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal 

quotation marks and citations omitted). “Failure to 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 questions posed by the 

Commonwealth to the victim during her direct testimony at trial. Appellant’s 

Brief at 4. “The Petitioner was afforded ineffective assistance of counsel in 

that defense counsel did not object to the pervasive and prejudicial level of 

leading questions that were posed to the minor alleged victim[] during her 

direct examination.” Id. at 5. The trial court determined that Appellant 

failed to establish the second prong of the test for counsel ineffectiveness 

because counsel articulated a reasonable strategy for declining to object to 

the admittedly leading questions. PCRA Court Opinion, 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 had 

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 the 

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 explanation 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 alienating 

the jury if she objected to or complained about the

leading nature of the questions. [Trial counsel] also 

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 “explanation does not 

reflect any sound strategic decision as the mere raising of objections to 
J-S13020-15 

- 8 - 

leading questions would not serve to denigrate the witness capacity but 

instead is merely intended to curtail and impugn the conduct of the 

examining counsel.” Appellant’s Brief at 6. We conclude 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 Court 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 allowing 

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 effectuate h[er] client’s 

interests.” Koehler, supra. Therefore, we discern no error or abuse of 

discretion by the PCRA court in dismissing Appellant’s PCRA petition relative 

to this claim. 
J-S13020-15 

- 9 - 

 Appellant next claims trial counsel was ineffective 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. Appellant’s Brief at 6. “The 

introduction of his testimony in the Commonwealth’s case was extraneous, 

irrelevant and not admissible as an element of proof and served to 

prospectively confuse and distract the jury to the detriment of [Appellant] 

through the introduction of a superfluous and irrelevant 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 the instigation of her 

____________________________________________ 

3

 Appellant also claims direct appeal counsel, Tina M. Fryling, Esquire, was 

ineffective for failing to preserve this issue on direct appeal. On direct 

appeal, this Court found Appellant’s issue waived for 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 claim 

would have been waived as well due to the failure to 

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 of 

[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 claim. See Commonwealth 

v. Lopez, 854 A.2d 465, 469 (Pa. 2004) (recognizing a layered 

ineffectiveness claim begins with an assessment of trial counsel’s 

performance and a failure to establish ineffectiveness of trial counsel defeats 

the entire claim). 
J-S13020-15 

- 10 - 

mother, Appellant’s wife, to “facilitate [Appellant’s] removal from the home 

and permit her to engage in another relationship without that impediment.” 

Appellant’s Brief at 7; see N.T., 11/18/10, at 28-29. Trial counsel did not 

mention Beitzel as the object of that motivation in her opening or in crossexamination of other Commonwealth witnesses. The Commonwealth called 

Beitzel in its case in chief to establish that he first became acquainted with 

Appellant’s wife several months after the date of the alleged sexual assault. 

See N.T., 11/19/10, at 4-5.4

____________________________________________ 

4

 The Commonwealth notes that Beitzel’s “testimony was brief and limited in 

scope.” Commonwealth Brief at 1. The direct testimony 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 

- 11 - 

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

i.e., the prejudice, prong of the test for counsel’s ineffectiveness. 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 all 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 unprofessional 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 5th 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 the 

lens of counsel ineffectiveness, rather than as a 

preserved claim of trial court error. 

Id. at 315 (internal quotation marks and citations omitted). 

 Upon careful review of the record, we agree with the PCRA court that 

even had an objection to Beitzel’s testimony been sustained, 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 would 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 dismissed 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