J-S44035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

FRANK ROY DAPRA

                        Appellant                  No. 258 WDA 2015


               Appeal from the PCRA Order January 23, 2015
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0002781-2010


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                       FILED AUGUST 10, 2015

     Frank Roy Dapra appeals from the order imposed by the Court of

Common Pleas of Westmoreland County, which denied his petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Upon careful review, we affirm.

     The PCRA court has set forth the relevant facts as follows:

     M.C. was living in the Borough of Trafford in June of 2010 when
     she reconnected with Dapra, a man with whom she had a
     previous relationship. When Dapra told her that he had nowhere
     to stay, M.C. allowed him to stay temporarily at her apartment,
     a duplex. M.C. testified that while Dapra was staying at her
     apartment, she believed that he tried to steal a computer and
     her debit/credit card. M.C. told Dapra that he was no longer
     welcome at her apartment, and asked him to leave.

     Some days later, in the early morning hours of July 15, 2010,
     M.C. was laying on her couch watching television when she was
     awakened by a noise at her front door. Dapra came in the door,
     and M.C. told him he was not welcome there and asked him to
     leave. Dapra and M.C. began arguing. Dapra grabbed M.C.,
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     held her down on the sofa, and raped her. M.C. testified that
     she repeatedly told Dapra to stop, but that he continued to use
     force in order to vaginally penetrate her with his penis. He also
     told her that he was never going to let her go. At trial, M.C.
     clearly described the details of Dapra’s sexual assault. When he
     was finished, Dapra told M.C. that he was sorry. He removed
     $160.00 and several medications from M.C.’s purse, and left the
     duplex apartment.

     M.C. immediately tried to call her best friend, Patrick, who lived
     beside her in the other part of the duplex apartment. While she
     was doing so, she saw Trafford Police Officer [Doug] Sam on
     patrol, and she flagged him down. She initially only reported
     that Dapra had stolen items from her purse, and did not reveal
     that Dapra had raped her. M.C. did disclose the details of the
     rape to her friend Patrick later that morning when she finally
     returned to her apartment.        Officer Sam came to M.C.’s
     apartment, and M.C. eventually told him about the sexual
     assault. She agreed to be examined at Forbes Regional Hospital,
     where she was also interviewed by a county detective.

     The rape kit, collected from M.C. at the time of her examination
     at Forbes Regional Hospital, was analyzed at the Pennsylvania
     State Police Crime Laboratory. The Commonwealth and the
     defense agreed to a stipulation as follows:

       Jennifer Badger of the Greensburg Regional Laboratory,
       examined rape kit materials.        She found no seminal
       material in the rectal, oral or vaginal swabs. She found
       the presence of blood on the vaginal swab, which was
       insufficient for further testing. The sample of underwear
       indicated the presence of blood, but contained insufficient
       amount to do further testing. Spermatozoa were identified
       on the underwear, inside the crotch and lower front,
       sample of which was sent to the DNA lab. The amount of
       seminal material was small, graded 1 on their scale of 1 to
       4, the lowest indication of amount.

       Sabine Panzer-Kaelin, of the Pennsylvania State Police
       DNA Lab, would testify that she analyzed the material sent
       from the serology lab, and found that due to the nature of
       the sample, no interpretation could be made to include or
       exclude Frank Dapra in the lower front underwear.
       Regarding the crotch of the underwear, an insufficient
       amount of DNA made the sample un-interpretable so that


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        no comparison was made to Frank Dapra or anyone.
        Everything did match the victim [M.C.]

     Patrick Daugherty, M.C.’s friend and neighbor, testified that he
     saw Dapra at M.C.’s door in the early morning hours of July 15,
     2010, saw him enter the apartment, and heard Dapra and M.C.
     arguing. He testified that he was a bit concerned for M.C., but
     because he did not involve himself in her personal business, he
     went upstairs to his bedroom and fell asleep. Daugherty was
     awakened at approximately 4:00 a.m. by a frantic telephone call
     from M.C., but before he could assist her, Officer Sam drove by
     on patrol and M.C. stopped him. M.C. went with the officer to be
     interviewed. Daugherty testified that when M.C. returned to the
     house later that morning, she seemed to be acting unusually,
     and actually fell asleep on his couch. Sometime later, M.C.
     disclosed to Patrick that Dapra had assaulted her. Daugherty
     encouraged M.C. to call the police, and an officer eventually
     arrived and initiated the investigation that gave rise to the
     charges in this matter.

PCRA Court Opinion, 1/23/15, at 2-4 (citations and quotation marks

omitted).

     On March 8, 2011, following a two-day trial, a jury convicted Dapra of

rape, sexual assault and indecent assault, but found him not guilty of

robbery and access device fraud. Following several continuances, on March

2, 2012, the court determined Dapra to be a sexually violent predator (SVP),

and sentenced him to 7½ to 20 years’ imprisonment. Dapra filed a timely

post-sentence motion, which the court denied on June 2, 2012.

     Dapra filed a direct appeal to this Court, which denied relief on April

11, 2013. He subsequently sought allowance of appeal, which our Supreme

Court denied on November 11, 2013.

     Dapra filed a pro se petition for PCRA relief on January 3, 2014.

Counsel was appointed and, on February 13, 2014, filed an amended


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petition. On December 15, 2014, a PCRA hearing was held, and on January

23, 2015, the PCRA court entered an order denying the petition.

      Dapra filed a timely notice of appeal to this Court, in which he raises

the following claims:

      1. Whether the PCRA court erred in finding that trial counsel was
      not ineffective despite his failure to object to irrelevant and
      prejudicial testimony given by the victim.

      2. Whether the PCRA court erred in finding that trial counsel was
      not ineffective despite his failure to object to hearsay testimony
      regarding statements made by the victim to a nurse.

      3. Whether the PCRA court erred in finding that trial counsel was
      not ineffective despite his failure to challenge through post-
      sentence motions or appeal the [SVP] determination despite the
      [Sexual Offenders Assessment Board’s] witness relying on
      “facts” not supported and/or contradicted by the record.

      4. Whether the PCRA court erred in finding that trial counsel was
      not ineffective despite his failure to object to multiple layers of
      hearsay testimony at the time of the post-sentence motions
      hearing.

Appellant’s Brief, at 5.

      The standard and scope of this Court’s review of the denial of a PCRA

petition is as follows:

      [I]n reviewing the propriety of an order granting or denying
      PCRA relief, we are limited to determining whether the evidence
      of record supports the determination of the PCRA court, and
      whether the ruling is free of legal error. Great deference is
      granted to the findings of the post-conviction court, and these
      findings will not be disturbed unless they have no support in the
      certified record.

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).




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      With regard to claims of ineffective assistance of counsel, the law

presumes that trial counsel was effective.    Commonwealth v. Rios, 920

A.2d 790, 805 (Pa. 2007). Our Supreme Court has set forth the following

standard for reviewing ineffective assistance of counsel claims:

      To prevail on an ineffectiveness claim, Appellant must satisfy, by
      a preponderance of the evidence, the Sixth Amendment
      performance and prejudice standard set forth in Strickland v.
      Washington, 466 U.S. 668 (1984). This Court has divided the
      performance component of Strickland into two sub-parts
      dealing with arguable merit and reasonable strategy. Thus,
      Appellant must show that: the underlying legal claim has
      arguable merit; counsel had no reasonable basis for his or her
      action or omission; and Appellant suffered prejudice as a result.
      With regard to “reasonable basis,” we conclude that counsel’s
      chosen strategy lacked a reasonable basis only if Appellant
      proves that “an alternative not chosen offered a potential for
      success substantially greater than the course actually pursued.”
      To establish Strickland prejudice, 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.

Commonwealth v. Watkins, 108 A.3d 692, 702 (Pa. 2014) (internal

citations omitted).

      Dapra first claims that his trial counsel was ineffective for failing to

object to testimony about M.C.’s life.    In response to questions from the

Commonwealth, M.C. testified that she met Dapra when she was sixteen

years old and that they had a child together, who was placed for adoption

with one of her relatives.    She further testified that she got married to

another man in 2007, and that in 2009, when she was five months

pregnant, she was involved in an accident and sustained serious injuries. In



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October 2009, she gave birth to a son who died in January 2010, after which

her marriage ended.

      At the PCRA hearing, the following exchange took place between PCRA

counsel and trial counsel:

      Q:    Now, there was also testimony in the trial transcript that
      the victim’s marriage was falling apart, she was married to
      another individual following [her car] accident and the loss of
      that child, do you recall that testimony?

      A:    I don’t specifically recall that.

      Q:    Now, would you have any reason for not objecting to those
      two lines of testimony?

      A:     Well, in general, I thought they were not harmful to my
      client. The jury knows the witness is a human being and has a
      certain place where they are at in life, and I felt picking on little
      details that had absolutely nothing to do with the core facts of
      the case but yet spoke about what the person was testifying, I
      thought it was better strategy to let those go rather than try to
      pick on little facts when it was the important facts that we were
      looking at.

N.T. PCRA Hearing, 12/15/14, at 7-8.

      Trial counsel had a reasonable basis for not objecting because

attacking the witness/victim by continuously interrupting her testimony

would have undermined his strategy of focusing “on the core facts of the

case.” Id. at 8. Nevertheless, we note that trial counsel did object to some

of the Commonwealth’s direct examination of M.C., for example when she

was asked how she was feeling after her child passed away and whether her

father was supportive of her relationship with Dapra. N.T. Trial, 3/7/11, at




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69, 94-95. In the first instance, the court sustained the objection, and in

the second, the Commonwealth withdrew the question.

      Dapra also suggests that trial counsel was ineffective for failing to

object to M.C.’s testimony regarding the child they had together and his

failure to help with the child. At the PCRA hearing, trial counsel testified:

      The whole concept of the two parties having this child together,
      because I believe Mr. Dapra wasn’t going to testify, the whole
      idea I had, sort of an undercurrent running there was, one, no
      rape occurred, and two, the jury would find out there had been a
      prior sexual relationship between these two people by virtue of
      the fact that they had a child together and that facts were
      coming in with me knowing Mr. Dapra was not going to take the
      stand the jury may, in the back of their minds, think this was
      consensual if, in fact, any force did occur.

N.T. PCRA Hearing, 12/15/14, at 10.

      Because counsel believed that M.C.’s testimony could undermine the

Commonwealth’s ability to prove lack of consent, he had a reasonable basis

for his strategy and Dapra did not prove that his trial counsel was ineffective

for not objecting to the testimony. See Watkins, supra.

      Dapra next alleges that trial counsel was ineffective for failing to object

to hearsay testimony by M.C.’s nurse, Bethany Husband. Specifically, Dapra

challenges references to a questionnaire the nurse filled out with M.C.’s

answers regarding the sexual assault that took place on July 15, 2010. The

questionnaire included questions to be answered “yes,” “no,” or “unsure” in

order to give Nurse Husband more information about M.C.’s version of what

occurred during the sexual assault, such as whether there was vaginal



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penetration and whether she was choked, hit, or threatened verbally or

physically during the assault. N.T. Trial, 3/8/14, at 129.

      Hearsay is “a statement that the declarant does not make while

testifying at the current trial or hearing [that] a party offers in evidence to

prove the truth of the matter asserted in the statement.”        Pa.R.E. 801.

Hearsay is generally inadmissible, however there is a “medical treatment

exception,” which provides:

      Rule 803.   Exceptions to the Rule Against Hearsay—
      Regardless of Whether the Declarant Is Available as a
      Witness

                                     ...

      (4) Statement Made for Medical Diagnosis or Treatment.
      A statement that:

      (A) is made for—and is reasonably pertinent to—medical
      treatment or diagnosis in contemplation of treatment; and

      (B) describes medical history, past or present symptoms, pain,
      or sensation, or the inception or general character of the cause
      or external source thereof, insofar as reasonably pertinent to
      treatment or diagnosis in contemplation of treatment.

      Comment:
                                     ...

      This rule is not limited to statements made to physicians.
      Statements to a nurse have been held to be admissible.

Pa.R.E. 803(4), citing to Commonwealth v. Smith, 681 A.2d 1288 (Pa.

1996).

      Here, Nurse Husband testified to the questionnaire, which was used as

part of the rape kit procedure at Forbes Regional Hospital and falls within the

scope of the medical treatment exception. Therefore, trial counsel was not

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ineffective in failing to object to Nurse Husband’s testimony, which was

clearly admissible.

      Third, Dapra alleges that trial counsel was ineffective for failing to

challenge, in a post-sentence motion or on appeal, the finding that he was

an SVP. Dapra claims that testimony offered by Herbert Hays of the Sexual

Offenders Assessment Board was improper because Hays “relied on”

incorrect information about Dapra when he concluded that Dapra was an

SVP, specifically that Dapra stole M.C.’s credit card and money from her

after the sexual assault. However, Dapra was acquitted of the theft-related

charges. Nevertheless, Hays also testified that he considered other factors,

such as Dapra’s criminal history, when determining whether Dapra was an

SVP and therefore, did not rely solely on the robbery and device access

charges for which Dapra was acquitted. Hence, we find no merit in Dapra’s

claim.

      Section 9799.12 of the Sentencing Code defines an SVP, in relevant

part, as:

      [A]ny person convicted between January 23, 2005, and
      December 19, 2012, of any offense set forth in section
      9799.13(3.1) (relating to applicability) determined by a court to
      be a sexually violent predator due to a mental abnormality or
      personality disorder that made the person likely to engage in
      predatory sexually violent offenses.

42 Pa.C.S. § 9799.12.    Hays testified that when determining whether an

individual has a personality disorder, he looks at “the total history of the

individual.”   N.T. SVP Hearing, 3/2/12, at 9.    Hays then stated that he


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considered Dapra’s extensive criminal history and his “blatant disregard for

the well-being of others” to determine that Dapra has antisocial personality

disorder. Id. at 10, 15, 19. Dapra claims that Hays’ statement that Dapra

“took what he wanted” referred to the taking of money from M.C., for which

he was acquitted.    However, the record shows that Hays is referring to

Dapra raping M.C., essentially “taking” her without her consent, for which

Dapra was convicted, and which led Hays to conclude that “the likelihood of

him raping another woman due to the antisocial personality disorder. . . is

likely.” Id. at 21. Accordingly, Dapra’s claim that trial counsel erred by not

challenging Dapra’s SVP status is without merit.

      Dapra’s final claim relates to ineffective assistance of counsel during a

hearing on his post-sentence motions in which he asserted a right to a new

trial based on after-discovered evidence.    At the hearing, Dapra’s friend,

Joseph Talarico, testified that he spoke to M.C. in a bar the day of the Super

Bowl in February 2010, and that M.C. told him that Dapra never raped her.

N.T. Post-Sentence Motions Hearing, 6/18/12, at 7-8.      Following Talarico’s

testimony, the Commonwealth called Detective Robert Weaver who testified

that on December 8, 2011, Talarico told him about his conversation with

M.C. at the bar.    Id. at 26-27.    Detective Weaver further testified to a

conversation he had with Dapra’s sister in which she stated that Dapra’s

counsel was aware of Talarico’s statement before trial.     Detective Weaver

also testified to a conversation with M.C., in which she told him that she

never told Talarico that Dapra did not rape her. Id. at 28-29.

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      At the conclusion of the hearing, the court denied Dapra’s post-

sentence motion, having determined that Talarico was not credible, and that

even if he had been credible, his testimony would not have entitled Dapra to

relief as after-discovered evidence. Id. at 33.

      Dapra argues that trial counsel was ineffective for failing to object to

Detective Weaver’s hearsay testimony at the post-sentence motion hearing.

Upon review of the post-sentence motion hearing transcript and the trial

court’s Pa.R.A.P. 1925(a) opinion filed on October 16, 2012, it is clear that

the court denied relief based solely on its conclusion that Talarico was

untruthful.   Accordingly, even if trial counsel had objected to the hearsay

testimony of Detective Weaver, Dapra cannot establish that, but for

counsel’s inaction, the outcome would have been different. See Watkins,

supra.

      After careful review of the certified record, as well as the briefs of the

parties and applicable law, we agree with the PCRA court that Dapra is not

entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2015


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