J-S60038-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
ERIC SWANHART,                            :
                                          :
                 Appellant                :     No. 3597 EDA 2015

              Appeal from the PCRA Order November 17, 2015
               in the Court of Common Pleas of Bucks County,
            Criminal Division, at No(s): CP-09-CR-0001750-2012

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED OCTOBER 21, 2016

      Eric Swanhart (Appellant) appeals from the November 17, 2015 order

that denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      As we write for the parties, we need not recite the facts underlying this

case. Suffice it to say that, on December 4, 2012, a jury found Appellant

guilty of the indecent assault of his stepdaughter based upon her out-of-

court statements, although she later recanted those statements and did not

testify to Appellant’s inappropriate touching at trial.   On March 14, 2013,

Appellant was sentenced to six to 23 months of incarceration, followed by 24

months of probation. This Court affirmed Appellant’s judgment of sentence

on May 15, 2014. Commonwealth v. Swanhart, 104 A.3d 49 (Pa. Super.

2014) (unpublished memorandum).


*Retired Senior Judge assigned to the Superior Court.
J-S60038-16


        Appellant timely filed a counseled PCRA petition in which he claimed

trial counsel was ineffective for failing to raise several objections. Following

a hearing at which trial counsel addressed Appellant’s claims, the PCRA court

entered an order denying Appellant’s petition. Appellant timely filed a notice

of appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        Appellant presents this Court with five questions:

        I.     Whether the [PCRA] court erred by ruling that Appellant’s
        trial counsel was not ineffective for failing to request an in
        camera hearing to determine the admissibility of the victim’s
        statements, or by not disputing the admissibility of the
        statements at all?

        II.    Whether the [PCRA] court erred by ruling that Appellant’s
        trial counsel was not ineffective because trial counsel failed to
        object to hearsay testimony that was not part of the
        Commonwealth’s tender years notice and therefore inadmissible?

        III. Whether the [PCRA] court erred by ruling that Appellant’s
        trial counsel was not ineffective, particularly because trial
        counsel’s stated reasons for failing to object to inadmissible
        hearsay evidence were insufficient?

        IV.    Whether the [PCRA] court erred by ruling that Appellant’s
        trial counsel was not ineffective because trial counsel failed to
        object to the Commonwealth expert vouching for the victim’s
        credibility?

        V.     Whether the [PCRA] court erred by ruling that Appellant’s
        trial counsel was not ineffective because trial counsel failed to
        object to the Commonwealth’s improper closing argument, to
        wit, the future dangerousness of Appellant?

Appellant’s    Brief   at   4-5   (answers   below,   suggested   answers,   and

unnecessary capitalization omitted).


                                       -2-
J-S60038-16


      We begin with consideration of the applicable law.    “The standard of

review for an order denying post-conviction relief is limited to whether the

record supports the PCRA court’s determination, and whether that decision is

free of legal error.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.

Super. 2016) (quoting Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.

Super. 2012)).

      Appellant’s questions all concern the effectiveness of his trial counsel.

“Counsel is presumed to be effective; accordingly, to succeed on a claim of

ineffectiveness the petitioner must advance sufficient evidence to overcome

this presumption.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa.

2016) (citation omitted). To succeed on a claim of ineffective assistance of

counsel, a PCRA petitioner must plead and prove: “(1) that the underlying

claim has arguable merit; (2) that no reasonable basis existed for counsel’s

actions or failure to act; and (3) that the petitioner suffered prejudice as a

result of counsel’s error.”   Id. (citation omitted).   “Failure to prove any

prong of this test will defeat an ineffectiveness claim.” Commonwealth v.

Fears, 86 A.3d 795, 804 (Pa. 2014).

      Appellant first contends that trial counsel was ineffective in failing to

seek an in camera hearing to determine the admissibility of the minor

victim’s out-of-court statements under 42 Pa.C.S. § 5985.1.            Appellant’s

Brief at 13-15. That section provides, in relevant part, as follows.




                                     -3-
J-S60038-16


     An out-of-court statement made by a child victim or witness,
     who at the time the statement was made was 12 years of age or
     younger…, not otherwise admissible by statute or rule of
     evidence, is admissible in evidence in any criminal or civil
     proceeding if:

           (1) the court finds, in an in camera hearing, that the
           evidence is relevant and that the time, content and
           circumstances of the statement provide sufficient indicia of
           reliability; and

           (2) the child either:

                 (i) testifies at the proceeding; or

                 (ii) is unavailable as a witness.

42 Pa.C.S. § 5985.1(a).

     The PCRA court determined that Appellant’s claim lacked arguable

merit because “the [trial c]ourt did hold an in camera hearing based upon

stipulated evidence with regard to the statements that the Commonwealth

wished to introduce under [section 5985.1], and after doing so found that

the evidence would be both relevant and reliable.”     PCRA Court Opinion,

1/28/2016, at 11. That determination is supported by the record. See N.T.,

11/29/2012, at 16-17.

     Further, the PCRA court concluded that Appellant was not prejudiced

by counsel’s decision to proceed upon stipulated evidence: “The stipulated

evidence used in the in camera hearing summarized what would have been

offered had a more formal in camera hearing been held, and based on the

stipulated evidence the [c]ourt found that the proffered testimony was



                                    -4-
J-S60038-16


admissible as both reliable and relevant.” PCRA Court Opinion, 1/28/2016,

at 13. Because the result of the hearing would have been the same in either

event, Appellant cannot establish prejudice. Commonwealth v. Matias, 63

A.3d 807, 810 (Pa. Super. 2013) (“To establish the third prong, i.e.,

prejudice, the appellant must show that there is a reasonable probability

that the outcome of the proceedings would have been different, but for

counsel’s action or inaction.”). He is entitled to no relief on his first claim.

      With his next two issues, Appellant claims that trial counsel was

ineffective in not objecting to hearsay testimony that was not included in the

Commonwealth’s pretrial notice to introduce testimony under section

5985.1.   Specifically, Appellant maintains that (1) the Commonwealth did

not give the required notice as to the out-of-court statements of the victim

to her friend M.H., Appellant’s Brief at 16-18, and (2) trial counsel’s basis for

not objecting to those statements was not a reasonable basis, id. at 19-20.

      The PCRA court determined that Appellant did not establish that he

was prejudiced by counsel’s failure to object. First, although the statements

to M.H. were not included in the notice, trial counsel “‘fully expected’ [the

victim’s] statements to M.H. to be offered at trial, and was therefore able to

prepare his case accordingly.”       PCRA Court Opinion, 1/28/2016, at 15

(quoting N.T., 9/18/2015, at 68).        Moreover, “there was other relevant

testimony at trial that was consistent with the statements [the victim] made

to M.H.” Id. (citing N.T., 11/30/2015, at 172-73 (same events reported by


                                       -5-
J-S60038-16


the victim to Jamie Valleley of the Bucks County Children’s Advocacy Center)

and 184 (same events reported by the victim to Jeneen Overberger of the

Bucks County Office of Children & Youth; N.T., 12/3/2015, at 27-28 (same

events reported by the victim to Tinicum Township Police Officer Nicole

Madden)). The PCRA court’s factual findings are supported by the record.

      Because Appellant did not show prejudice, his claim fails and we need

not consider the merits of the claim or the reasonableness of counsel’s

failure to object.   Fears, 86 A.3d at 804 (noting that, if an ineffective

assistance claim falls short under any element, the court may skip ahead to

that element). Thus, his second and third issues warrant no relief from this

Court.

      Appellant next argues that trial counsel was ineffective in not objecting

to the Commonwealth’s expert having vouched for the victim’s credibility.

Appellant indicates that Dr. John Shanken-Kaye “repeatedly” did so, offering

the example of the testimony that the victim’s out-of-court “‘report of her

molestation is much more credible and detailed than her supposed

recantation….’”   Appellant’s Brief at 20 (quoting N.T., 12/3/2012, at 199).

Appellant maintains that such testimony by Dr. Shanken-Kaye “was

essentially his opinion as to the truthfulness of [the victim], which

specifically violates Rule 608.”1 Id.



1
  “Opinion testimony about the witness’s character for truthfulness or
untruthfulness is not admissible.” Pa.R.E. 608(a).

                                        -6-
J-S60038-16


      The PCRA court once again determined that Appellant failed to prove

the prejudice prong of his claim.        Given the totality of the evidence

presented at trial, the PCRA court concluded as follows.

      In our view, the record does not support a finding that a
      reasonable probability of acquittal existed but for the action or
      omission of trial counsel.    Further, we mitigated any potential
      threat of prejudice resulting from Dr. Shanken-Kaye’s testimony,
      when we instructed the jury at trial:

            Now, remember, you, the jurors, are the sole judges
            of the credibility and weight of all of the testimony.
            The fact that the lawyers and I have referred to
            certain witnesses as expert witnesses and that the
            witness may have special knowledge or skill does not
            mean that their opinions are right.

PCRA Court Opinion, 1/28/2016, at 19 (citations and quotation marks

omitted).

      Our review of the record supports the PCRA court’s findings.          The

court’s denial of Appellant’s fourth claim is the product of neither an error of

law nor an abuse of discretion.      See Commonwealth v. Flor, 998 A.2d

606, 632 (Pa. 2010) (“The jury is presumed to have followed the court’s

instructions.”); Commonwealth v. Miller, 987 A.2d 638, 654-55 (Pa.

2009) (affirming finding of no prejudice where, in light of the evidence as a

whole, the particular evidence at issue “was not as critical as Appellant

claims it was”). No relief is due.

      Finally, Appellant contends that trial counsel rendered ineffective

assistance in neglecting to object during the Commonwealth’s closing



                                      -7-
J-S60038-16


argument. By way of background, the jury had received evidence that, after

Appellant was confronted with the victim’s allegations, he attempted to

commit suicide and, while being treated as a result, told hospital personnel

that he had put his hands down his stepdaughter’s pants. N.T., 11/30/2012,

at 70-79.   Appellant offered an expert witness to explain that mental illness

and abuse by his mother made Appellant believe that any allegations of

improper acts lodged against him had to be true. N.T., 12/3/2012, at 112-

14.   Accordingly, in his closing, Appellant’s counsel argued that this

explained why Appellant, although innocent, admitted to molesting the

victim:

              We’re all affected by our childhoods. We’re all affected by
      our parents and our influences growing up. … [M]y mother is
      still in the back of my head. My father is still in the back of my
      head. They are still alive in me, as your parents are in you, and
      they influence who we are and how we respond to things. Now,
      that happens to all of us. Look at what happened to [Appellant].
      … He had a mother who was crazy, who would scream at him.
      He used to go to bed at night and wrap his pillow around his
      head so he wouldn’t hear the screaming, and she would tell him
      over and over and over and over again that he had done
      something wrong, that he was bad, that he stole this, that he
      took that, that he had this attachment. That is what he lived
      with.

            Now, if we’re all affected by our parents, how was he
      affected? I will tell you how he was affected. He grew up with
      bipolar disorder.     He’s on a series of medications.     He is
      completely incapable of confrontation. If someone tells him that
      they think he did something or they did something, he is
      immediately filled with terror. He can’t confront them. The
      conditioning that his mother instilled in him will kick in. He’s
      never been accused of a crime; there’s nothing in the record to



                                     -8-
J-S60038-16


        show that he has, but suddenly he’s accused of this horrific act
        and it triggered that response in him.

N.T., 12/4/2012, at 80-81.

        During its closing, the Commonwealth argued the following, to which

Appellant contends counsel should have objected:

              There was some argument that defense counsel made
        about always having a mother’s voice in the back of her head. I
        don’t dispute that could be the case.

              You now have the opportunity to prevent something
        similar for [the victim], because if you’re able to bring justice,
        you may help prevent a lifetime of her experiencing her
        stepfather’s hand down her pants. She’s got guts. If nothing
        else, we can agree on that. We can agree she deserves some
        respect and we can agree at long last she deserves closure.

Id. at 98.

        Appellant maintains that the Commonwealth’s statements improperly

asked    the   jury   to   consider   Appellant’s   “[f]uture   dangerousness”   in

determining guilt and suggested that “something would continue unless the

jury did something.” Appellant’s Brief at 21. However, the PCRA court again

determined that Appellant failed to establish that he was prejudiced by

counsel’s failure to object:

        The statements made by the Commonwealth in its closing were
        not so egregious as to form[] in [the jurors’] minds fixed bias
        and hostility towards [Appellant] which would prevent them from
        properly weighing the evidence and rendering a true verdict. It
        should also be noted that any potential for prejudice that existed
        due to trial counsel’s inaction in regard to the Commonwealth’s
        closing argument was mitigated by the fact that we instructed
        the jury that the speeches and arguments of counsel are not
        part of the evidence and you should not consider them as such.


                                        -9-
J-S60038-16


      Accordingly, the record fails to support a finding that Appellant
      was prejudiced by trial counsel’s failure to object during the
      Commonwealth’s closing argument.

PCRA Court Opinion, 1/28/2016, at 22 (citations, quotation marks, and

unnecessary capitalization omitted). We find no error or abuse of discretion

in the PCRA court’s analysis. Appellant’s final issue merits no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/21/2016




                                     - 10 -
