Opinion
1381 EDA 2020
09-09-2021
COMMONWEALTH OF PENNSYLVANIA Appellee v. PAUL CALLAHAN Appellant
Joseph D. Seletyn, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered June 30, 2020 In the Court of Common Pleas of Bucks County Criminal Division at No: CP-09-CR-0001168-2015
Joseph D. Seletyn, Esq. Prothonotary
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.[*]
MEMORANDUM
STABILE, J.
Appellant, Paul Callahan, appeals from the June 30, 2020, order denying relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.
Appellant's conviction arose from his sexual assault of the three young daughters of his live-in girlfriend. Victim T.S. was 10 or 11 years old when the assaults began. She testified that Appellant assaulted her by entering her bedroom after she had gone to sleep, holding her hands over her head, and engaging in sexual intercourse with her. Victim H.S. was 12 years old when the assaults began. On several occasions, Appellant touched her breasts and vagina. He also exposed himself to her. Victim K.S. was nine years old when Appellant assaulted her. While the two were home with no one else present, Appellant put his mouth on her vagina and engaged in sexual intercourse with her. K.S. later told her mother, Lisa Callahan, of Appellant's behavior after Callahan observed K.S. and Appellant together and suspected that something was wrong. Callahan then took the children to her parents' house and called police.
An examination by a Sexual Assault Nurse Examiner ("SANE") revealed no findings of physical trauma to K.S. But a swab of her vagina revealed saliva with DNA consistent with Appellant's DNA profile. A perianal swab revealed male DNA that excluded Appellant. According to the record, the exclusion meant either that Appellant's DNA was not present in the perianal swab or that the sample contained insufficient data to determine whether Appellant's DNA was present.
On April 30, 2015, a jury found Appellant guilty of two counts of rape of a child, two counts of aggravated indecent assault (complainant less than 13 years of age), three counts of indecent assault (complainant less than 13 years of age), and three counts of unlawful contact with a minor. On February 23, 2016, the trial court imposed an aggregate sentence of 63½ to 127 years of incarceration. The trial court also found that Appellant was a Sexually Violent Predator ("SVP"). On December 22, 2017, this Court affirmed in part and vacated in part his judgment of sentence. On July 2, 2018, the Pennsylvania Supreme Court denied Appellant's allowance of appeal.
18 Pa.C.S.A. §§ 3121(c), 3125(a)(7), 3126(a)(7), 6318(a)(1), respectively.
While Appellant's direct appeal was pending, this Court decided Commonwealth v. Butler, 173 A.2d 1212 (Pa. Super. 2017), reversed, 226 A.3d 972 (Pa. 2020). Pursuant to this Court's opinion in Butler (since reversed), we concluded that Appellant's sentence was illegal insofar as the trial court found him to be an SVP.
Appellant, proceeding pro se, filed timely a first PCRA petition on February 20, 2019. Appellant filed an amended, counseled petition on August 28, 2019. The Commonwealth filed its answer on September 27, 2019. On October 29, 2019, the PCRA court issued its notice of intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response on November 15, 2019. Thereafter, counsel filed a "Second Amended Petition for Post-Conviction Collateral Relief in Response to the Court's Rule 907 Notice of Intention to Dismiss Dated October 28, 2019." In this document, counsel reasserted the claims of the original petition and explained that the issues Appellant raised in his pro se Rule 907 response lacked merit. The Commonwealth filed an answer on February 12, 2020. On June 30, 2020, the PCRA court entered the order on appeal dismissing the petition. This timely appeal followed.
Appellant presents three questions:
I. Did the lower court err in denying [Appellant's] claim, without a hearing, that trial counsel was ineffective in his representation for failure to object, to move to strike, to seek a curative or cautionary instruction, or to request pre-trial through a motion in limine or otherwise, to preclude the Commonwealth's expert SANE nurse, Mary Elizabeth Bangs, from offering her opinion that victim K.S. was sexually abused in violation of 42 Pa.C.S.A. § 5920, and Commonwealth v. Maconeghy, (Pa. 2017) (N.T. Trial, April 28, 2015 p.107), when there was no physical evidence of sexual abuse discovered during the nurses examination, the opinion was based upon the oral history as presented to the nurse, the nurse was relying upon [Children's Hospital of Philadelphia ("CHOP")] internal statistics, and the opinion bolstered and suggested to the jury that the nurse witness was of the expert opinion that the victim was credible in her reports?
II. Did the lower court err in denying [Appellant's] claim, without a hearing, that trial counsel was ineffective in his representation for failure to object to Nurse Bang's testimony regarding internal CHOP sex abuse statistics, where no such information, evidence, or documentation of said statistics were turned over by the Commonwealth to the defense in discovery, nor made part of any expert report produced in discovery (N.T. Trial, April 28, 2015, p. 106-07)?
III. Did the lower court err in denying [Appellant's] claim, without a hearing, that trial counsel was ineffective in his representation for failure to call DNA expert witness Katherine Cross, as a witness for the defense to educate the jury regarding DNA evidence from the defense perspective, to rebut the prosecution's DNA evidence, to explain in an exculpatory manner how DNA evidence could have been deposited upon the person of K.S., and to explain whether saliva was actually found, or not, with any certainty on the person of K.S.?Appellant's Brief at vi.
We must determine whether the trial court committed an error of law and/or whether the record supports the PCRA court's findings of fact. Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014). We review the PCRA court's legal conclusions de novo. Id. Where the record supports the PCRA court's findings of fact, they are binding on this Court. Id. To prevail on a claim of ineffective assistance of counsel, a PCRA petitioner must plead and prove by a preponderance of the evidence each of the following: (1) that the underlying issue is of arguable merit; (2) that counsel had no strategic basis in support of the disputed action or inaction; and (3) that counsel's error was prejudicial, 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. Spotz, 84 A.3d 294, 311-12 (Pa. 2014). "[A] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Id. at 312. For purposes of prejudice, "[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding." Id. The PCRA court may dismiss a petition without a hearing when it is satisfied that there is no genuine issue concerning any material fact and that further proceedings would serve no purpose. Pa.R.Crim.P. 907(1).
In his first argument, Appellant claims counsel was ineffective in failing to object to the Commonwealth's expert's opinion that K.S. was sexually assaulted. Appellant relies on Commonwealth v. Maconeghy, 171 A.3d 707 (Pa. 2017), wherein our Supreme Court held that the Commonwealth's expert-who testified that he believed the victim's account of sexual abuse- invaded the jury's province of determining credibility. That is, the expert witness should not have been allowed to opine that the victim was telling the truth.
Maconeghy is inapposite here, as the Commonwealth's expert, Mary Elizabeth Bangs, never stated she believed the victim was telling the truth. Rather the expert testified that her examination of K.S.'s vagina revealed no physical trauma, but that the examination was nonetheless consistent with the allegations of sexual abuse:
Q. And Miss Bangs, when you were examining [K.S.'s] vagina, did you find any injuries in this case?
A. No, ma'am, but I wouldn't expect there to be.
Q. And why not?
A. So we have database [sic] of the Children's Hospital of Philadelphia which incorporates 600 cases that we have done since the start of our sexual assault response team in 2009. Of those 600 cases, only 21 percent of those cases showed any type of evidence of physical abuse.
Q. And is there a medical reason why a child's vagina would not show injury after a sexual assault?
A. So [K.S.] being only 9 or 10 years old, her vagina is very elastic. It is very vascular. There is a lot of blood supply there. There is a lot of moisture there. It is major anatomy at that point to move and be elastic.
And because of the blood supply, healing happens very, very quickly. And often after a sexual abuse if there was any type of trauma there, we often don't see it by the time they present to the - at the hospital.
Q. How quickly can healing happen?
A. Very quickly. Within hours.
Q. So Miss Bangs, in your opinion to a reasonable degree
of professional and scientific certainty, was your findings in this case (sic) consistent with sexual abuse?
A. Yes, ma'am.N.T. Trial, 4/28/15, at 106-07.
Bangs' testimony was unobjectionable pursuant to our Supreme Court's opinion in Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000):
The question presented in this appeal is whether the Commonwealth may, as part of its case-in-chief in a sexual assault prosecution, offer the testimony of an expert that the absence of physical trauma is nevertheless consistent with the alleged sexual abuse. For the reasons stated herein, we hold that such testimony is admissible in the Commonwealth's case-in-chief and accordingly, we affirm.Id. at 227 (emphasis added). The Minerd Court noted that the witness was not asked for and did not express an opinion as to whether the victims were telling the truth. Id. at 230. The same is true instantly. Further, in Minerd the expert's testimony was relevant to explain the absence of evidence of physical trauma, without which the jurors might have drawn an unwarranted negative inference against the Commonwealth. Id. at 231. Again, the same is true here. Bangs testified, precisely in accord with Minerd, that her examination revealed no physical injury to K.S., but that a finding of no physical injury was consistent with sexual assault. We discern no arguable merit to this issue.
In his second argument, Appellant claims counsel was ineffective for failing to object to Bangs' use of statistics from a Children's Hospital of Philadelphia ("CHOP") database. As quoted above, Bangs said that only 21 percent of sexual assault examinations since 2009 showed physical evidence of abuse. N.T. Trial, 4/28/15, at 107. Appellant fails to support this argument with citation to pertinent authority, and therefore he has waived it. Pa.R.A.P. 2119(b); Commonwealth v. Mulkin, 228 A.3d 913, 917 (Pa. Super. 2020). Were we to address this argument on the merits, we would affirm for the reasons explained on pages 14 through 17 of the PCRA court's August 11, 2020, opinion.
In Appellant's final argument, he claims counsel was ineffective for failing to call Katherine L. Cross as a DNA expert for the defense. Appellant claims Cross would have helped refute the Commonwealth's DNA evidence implicating Appellant in the assault of K.S.
When raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies the performance and prejudice requirements of the [Strickland v. Washington, 466 U.S. 668] test by establishing that: (1) 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.Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013), appeal denied, 74 A.3d 1030 (Pa. 2013). Of these elements, only prejudice is presently at issue. To demonstrate prejudice, Appellant must show how Cross's testimony would have been beneficial in this case. Id.
Appellant attached to his petition a copy of Cross's June 3, 2019, report. In his brief, however, he fails to cite to the report or develop any argument as to how Cross's testimony based on her report would have been beneficial. For this reason, Appellant has waived his third argument. Pa.R.A.P. .2119(c); Commonwealth v. Harris, 979 A.2d 387, 396 (Pa. Super. 2009). Were we to address the merits of this issue, we would affirm based on the PCRA court's opinion. In its review of Cross's report, the PCRA court explains that the Cross report contains no evidence that was not presented to the jury. PCRA Court Opinion, 8/11/2020, at 18-19. Further, the PCRA court notes that defense counsel was able to use Cross's report during cross examination of the Commonwealth's DNA expert. Id. at 19. We would conclude, along with the PCRA court, that Appellant has failed to allege any basis upon which Cross's testimony would have been beneficial to him at trial.
For the foregoing reasons, we affirm the PCRA court's order. We direct that a copy of the PCRA court's August 11, 2020, opinion be filed along with this memorandum.
Order affirmed.
Judgment Entered.
(Image Omitted) [*] Retired Senior Judge assigned to the Superior Court.