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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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                    [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).


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                    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.


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      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.

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                  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.




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           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

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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.




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       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).


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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 cross-

examination 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)

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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 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.



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            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

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