J-S69013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DEWAYNE VESSELS

                            Appellant                   No. 2805 EDA 2013


                  Appeal from the PCRA Order October 3, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0202771-1999


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED DECEMBER 05, 2014

        Appellant, Dewayne Vessels, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises three issues for our review:

              THE COURT ERRED IN DENYING [APPELLANT’S]
              PCRA PETITION WHERE TRIAL COUNSEL WAS
              INEFFECTIVE FOR FAILING TO IMPEACH THE VICTIM
              WITH HIS PRIOR JUVENILE RECORD?

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
J-S69013-14


            THE COURT ERRED IN DENYING [APPELLANT’S]
            PCRA PETITION WHERE TRIAL COUNSEL WAS
            INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL
            COURT’S BAR OF ANY MENTION OF THE CRIMINAL
            TRIAL OF BISHOP BRIAN EDWARDS BY DEFENSE
            COUNSEL?

            THE COURT ERRED IN DENYING [APPELLANT’S]
            PCRA PETITION WHERE TRIAL COUNSEL WAS
            INEFFECTIVE FOR FAILING TO RAISE DISCOVERY
            VIOLATIONS BY THE COMMONWEALTH RELATING TO
            MEDICAL    RECORDS    THAT  SHOWED    THAT
            GONORRHEA WAS CONTRACTED BY BOTH THE
            VICTIM AND [APPELLANT]?

(Appellant’s Brief at 5).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether        the   evidence    of   record     supports    the     court’s

determination    and    whether      its     decision    is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).                We give no such deference,

however, to the court’s legal conclusions.          Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA

hearing as a matter of right; the PCRA court can decline to hold a hearing if

there is no genuine issue concerning any material fact, the petitioner is not

entitled to PCRA relief, and no purpose would be served by any further

proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).

                                           -2-
J-S69013-14


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Peter F.

Rogers, we conclude Appellant’s issues merit no relief.       The PCRA court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See PCRA Court Opinion, filed January 16, 2014, at 2-6)

(finding: 1) trial counsel was not ineffective for failing to impeach victim

with juvenile record; prior to trial, court conducted hearing to examine

victim’s juvenile adjudications; court determined victim’s juvenile record did

not include adjudications for crimen falsi offenses; 2) trial counsel was not

ineffective for failing to object to court barring mention of separate criminal

“trial” of Brian Edwards, another individual who allegedly molested victim;

although Commonwealth had pursued criminal charges against Mr. Edwards,

it withdrew charges prior to Mr. Edwards’ preliminary hearing; 3) trial

counsel was not ineffective for failing to raise purported discovery violation

regarding disclosure of medical records showing Appellant and victim both

contracted gonorrhea; trial counsel did make pretrial objection to bar

victim’s testimony that he had contracted gonorrhea; trial counsel also

sought   to   preclude   Commonwealth’s     admission   of   report   regarding

Appellant’s diagnosis; court determined Appellant had adequate pretrial

notice that Commonwealth would introduce victim’s medical records,

because criminal complaint alleged that victim had contracted sexually

transmitted disease; Commonwealth was under no duty to provide Appellant


                                     -3-
J-S69013-14


with medical records, which were available to both parties; moreover, court

properly admitted medical reports into evidence; it was highly relevant that

both victim and Appellant contracted sexually transmitted disease around

same time; additionally, trial counsel conducted full and complete cross-

examination of Commonwealth’s medical expert). Accordingly, we affirm on

the basis of the PCRA court opinion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2014




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                                                                       CP-51-CR-0202n1-1999Ccmm. v Vessels, Dewayne
                                                                                         Oplnron
                     IN THE COURT OF COMMON PLEAS
                FIRST JUDICIAL DISTRICT OF PENNSYLV,/
                         CRIMINAL TRIAL DIVISION                           IIIIIIIIIUIIII"" m
                                                                                   7105628301

C0lvTh10N"WEALTH OF PENNSYL VANIA                        PHILADELPHIA COUNTY
                                                         COURT OF C0lvTh10N PLEAS
VS.
                                                         2805 EDA 2013
DWAYNE VESSELS,                                          CP-5l-CR-0202771-1999
Appellant
                                                         PCRA
                                   JAN 16 2014 .                                    FILED- -
                               Criminal App;:;a!s Unit
                             First JudicitPlNJlO1»f PA                        JAN 1 61014

ROGERS, J.                                                                   POSITrialUnit

       On June 2, 2002, following a jury trial, Dwayne Vessels (Defendant) was found

guilty of involuntary deviate sexual intercourse, endangering the welfare of a child, and

corruption of minors. On May 16, 2003, Defendant was sentenced to an aggregate term

often (10) to twenty (20) years incarceration, followed by ten (10) years reporting

probation. Thereafter, Defendant's convictions and sentence was affirmed, and no

petition for allocator was filed. On January 5, 2009, Defendant filed a pro se Post-

Conviction Relief Act (PCRA) petition, which was subsequently amended by counsel and

filed on December 13, 2011. After review and consideration, Defendant's petition was

denied on October 3,2013. Defendant has appealed that decision. This opinion follows.

      The factual background concerning this matter can be summarized in the

following manner: In this case, Defendant (33) befriended the victim, M.Y. (14), who

was homeless. Defendant took him into his home and gave him a bedroom, where he

molested and raped him on numerous occasions. Even after the Defendant later took in

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the victim's mother and siblings (who were also homeless) he continued to molest the

victim in his room. At a funeral for the victim's cousin, Bishop Brian Edwards, who

presided over the service befriended the victim and later began sexually molesting the

victim as well. The victim told Defendant of Edward's abuse, and Defendant took the

victim to the police. However, after some time, the police eventually suspected

Defendant as committing crimes against the victim as well, and after questioning him

alone, the victim told police of all the crimes committed against him by Defendant who

was subsequently arrested.

       After a review of the record, no relief is warranted as the PCRA court properly

dismissed the petition. For the following reasons stated herein, Appellant fails to assert

any claim upon which relief can be granted.
                                                                                       -
      It is well settled that the law presumes that counsel was effective at trial and the

defendant carries the burden of proving ineffectiveness. Commonwealth v. Baker, 614

A.2d 663 CPa. 1992). It is the petitioner who bears the burden of proving that (1) the

underlying claim has arguable merit; (2) counsels' action or inaction had no reasonable

basis; and (3) the petitioner was prejudiced by the act or omission to such a degree that

but for counsel's conduct, the outcome of the proceeding would have been different.

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v. Bomar, 826 A.2d

831 (Pa. 2003) (emphasis added). If any of these elements are not satisfied, the claim

fails. Commonwealth v. Fulton, 830 A.2d 567 (Pa. 2003). A claim of ineffectiveness of

counsel will only be granted when the petitioner establishes the counsel's conduct so



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undermined the truth determining process that no reliable verdict could have been

rendered. See, 42 Pa.C.S.A §9543.

       In his first assertion of alleged ineffectiveness, Defendant claims that trial counsel

was ineffective for failing to impeach the victim with his prior juvenile record.

       Prior to trial, during a hearing concerning a motion in limine, the issue was

discussed as to the victim's juvenile adjudications. All parties, including the court, were

in agreement that the victim had two (2) open cases. However, it was determined that the

victim's prior criminal record did not include any adjudication for crimenfalsi crimes.

       It is well settled that prior convictions can only be used as impeachment when they

involve criminfalsi offenses, including dishonesty or false statement. Commonwealth v.

Randell, 528 A.2d 1326 CPa. 1987); see also Pa.R.E. 609. The victim's prior record did

not include any crimin falsi offenses. Because this information was known to Defendant

in open court, defense counsel cannot be faulted for taking a meritless action that was

inconsistent with the law. Commonwealth v. Thomas, 783 A.2d 328 CPa. Super. 2001).

Therefore, no claim of ineffectiveness can be sustained. Defendant fails to satisfy the first

element in an ineffectiveness claim - that the issue has arguable merit.

       Next, Defendant claims that trial counsel was ineffective for failing to object to the

trial court's bar of any mention of the separate criminal trial of Bishop Brian Edwards.

       This claim of alleged ineffectiveness cannot be sustained, as the assertion is moot.

After investigation, it was learned that all charges against Edwards were withdrawn. The

Commonwealth was forced to withdraw all charges against Edwards prior to the

preliminary hearing due to the fact that the victim could not be secured and brought to

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court from out-of-state Department of Human Services (DHS) placement. 1 Again,

defense counsel cannot be faulted for taking a meritless action. Thomas.

        Lastly, Defendant claims that trial counsel was ineffective for failing to raise

discovery violations by the Commonwealth relating to medical records showing that

Defendant and the victim both contracted gonorrhea.

        Prior to trial, Defendant sought to bar the testimony of the victim concerning the

fact that he had contracted gonorrhea because it was considered a medical diagnosis and

was therefore barred as hearsay. He also sought to preclude the Commonwealth from

presenting any report regarding Defendant's testing positive for gonorrhea because the

Commonwealth had not presented Defendant with an expert report. He argued that such a

report was subject to mandatory disclosure. Defendant's basis for that argument was that

1) he had no time to prepare for an appropriate cross-examine such a report, and 2) he did

not have the funds to hire a rebuttal expert.

        At the pre-trial hearing, Defendant argued that the Commonwealth only recently

advised the defense that it would be calling a medical expert to testify that the victim had

tested positive for a sexually transmitted disease. Following argument from both sides,

the court denied the defense motion, determining that Defendant had adequate notice of

the introduction of the victim's medical records prior to trial given the fact that it was

also alleged in the criminal complaint that the victim contracted a sexually transmitted

disease. The court also ruled that the Commonwealth could introduce evidence of



1 The charges against Brian Edwards (MC-51-CR-0952741-1999) were withdrawn by the Commonwealth on
November 16, 1999.

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Defendant's physical condition by calling a medical expert to testify that Defendant's

medical records confirmed he had gonorrhea.

       Even though defense counsel voiced objections on the record concerning this

issue, he was not required to do so. The Commonwealth was under no duty to provide the

defense with either the medical records of Defendant or the victim, as that information

was available to both parties. Commonwealth v. Appel, 689 A.2d 891 (Fa. 1997);

Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999); and Commonwealth v. McElroy, 665

A.2d 813 (pa. Super. 1995) (no violation concerning discovery where the evidence was

available to both parties).

       Moreover, although trial counsel.did voice an objection as to the admissibility of

the medical reports in question, the evidence was properly admitted into the record.

Commonwealth v. Brown, 987 A.2d 699 (Pa. 2009) (questions regarding admissibility of

evidence rest within the discretion of the trial court). There was no abuse of discretion in

admitting this information into the record and defense counsel was not obligated to

object, as the material was relevant, probative, and available to both sides; therefore, no

discovery violation occurred. Commonwealth v. McElroy, 665 A.2d 813 (Pa. Super.

1995). It was highly relevant, and not prejudicial, that both the victim (anus) and

defendant (penis) contracted an STD within the same timeframe.

       Not only did defense counsel have adequate time in preparing to rebut such

evidence, counsel conducted a full and complete cross-examination of the

Commonwealth's expert medical witness.



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       Defendant's claim does not have arguable merit. Defendant cannot demonstrate

how he was prejudiced in this situation. The term "prejudice," in the context of

ineffectiveness of counsel, means that there is a reasonable possibility that, but for

counsel's unprofessional errors, the result of the trial would have been different. Pursell.

       The trial court's ruling on admissibility of the medical records was proper, and the

Commonwealth was not required by law to turn over information readily available to the

defense. No prejudice resulted, as trial counsel was more than effective in preparing for

the defense.

       Defendant cannot satisfy any claim of attorney error. For the reasons stated herein,

Appellant's claims should be dismissed.




                                                    PETER F. ROGERS
                                   COURT OF C :MM:ON PLEAS
                                   FIRST JUDICIAL DISTRICT OF PENNSYL VANIA




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