J-S67034-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

GARY EUGENE SEGRAVES,

                            Appellee                    No. 181 MDA 2015


                 Appeal from the PCRA Order January 21, 2015
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0000548-2009


BEFORE: BOWES, PANELLA, AND *PLATT, JJ.

DISSENTING MEMORANDUM BY BOWES, J.:                FILED FEBRUARY 16, 2016

       I respectfully dissent from the learned majority’s decision to reverse

the PCRA court herein. Instantly, the PCRA court, which was the trial court

at both of Appellee’s trials, the first of which resulted in a mistrial on a

significant number of charges because the jury was deadlocked,1 concluded

that there was a reasonable probability that the outcome of Appellant’s

second trial would have been different.        It did so on the ground that trial

counsel was ineffective in failing to impeach the victim with testimony from

one of the victim’s best friends at the time the crimes occurred. Specifically,
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1
   Appellant was found guilty of a single count of endangering the welfare of
a child during his first trial. The jury deadlocked on over seventy additional
criminal charges.

*
    Retired Senior Judge assigned to the Superior Court.
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that witness, who was available and was subpoenaed to testify, 2 would have

contradicted the victim’s claim that the victim told her of the abuse.

       In my view, the PCRA court’s legal conclusions are supported by its

factual findings. Viewing the evidence from the PCRA hearing in a light most

favorable to Appellee as the winner below, I agree with the PCRA court that

there is a reasonable probability that the outcome of Appellee’s trial, at least

as   to   one    of   his   convictions,       would   have   been   different.   See

Commonwealth v. Stewart, 84 A.3d 701 (Pa.Super. 2013) (en banc)

(noting this Court’s standard of review).

       The majority readily concedes that the claim has arguable merit and

that trial counsel had no reasonable basis for failing to elicit this testimony.

In addition, it acknowledges that Appellee satisfied all of the aspects of the

failure to call a witness test except for the prejudice prong.                    See

Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (setting forth

applicable test).     However, it concludes that Appellee could not establish

actual prejudice despite the fact that the first trial in this matter resulted in a

mistrial on all but one charge leveled against Appellee and the second jury

was initially deadlocked.
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2
   The subpoena was from Appellant’s wife’s attorney. Initially, Appellant’s
wife, who is the mother of the victim, was scheduled to go to trial with
Appellant. The Commonwealth nolle prossed the charge against her and
proceeded only against Appellant. Appellant’s trial counsel, however, knew
of the witness.



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       Although the majority, relying on statements made by the trial court

at sentencing, asserts that the evidence in this case was overwhelming, this

is simply not accurate. The critical evidence in this case, according to the

majority, consisted of the testimony of the victim and testimony from Dr.

Kathleen Lewis.      It is beyond cavil that a victim’s testimony alone in a sex

offense     case     cannot        constitute   overwhelming        evidence.           See

Commonwealth v. Weiss, 606 A.2d 439 (Pa. 1992). Pointedly, the first

jury in this case could not reach a verdict based on this “compelling

evidence[.]”     Majority Memorandum at 9.           Of course, Dr. Lewis did testify

that the victim’s injuries were consistent with having been sexually abused

and included a penetrating wound to her hymen.                    This evidence, though

more      than   sufficient   to     warrant    a   conviction,    hardly   qualifies    as

overwhelming evidence of Appellee’s guilt. Indeed, the PCRA court pointed

out that this testimony by Dr. Lewis “was dependent upon the victim’s

statements in her medical history.”             PCRA Court Opinion, 1/21/15, at 9.

Thus, Dr. Lewis’ testimony hinged on the very credibility of the victim, which

is what trial counsel could have further attacked with the evidence at issue.

       Moreover, as the PCRA court cogently noted, only after it twice

provided a deadlocked jury instruction did the jury ultimately reach its

verdict in this case. Where the jury was clearly deadlocked and another jury

could not reach a verdict, testimony by one of the victim’s best friends at

the time of the crimes that the victim did not tell her of the abuse, in direct

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contradiction to the victim’s testimony, could have swayed a juror not to

credit the victim’s testimony and resulted in a different outcome relative to

at least some of the charges. Frankly, it is untenable to suggest that the

evidence in this case was overwhelming where two juries had difficulty in

reaching a verdict.        Since there was a reasonable probability that the

impeachment evidence could have altered the verdict as to at least one

charge,3 I respectfully dissent.




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3
   The second jury found Appellant guilty of six counts of rape by forcible
compulsion, twelve counts of rape of a child, three counts of involuntary
deviate sexual intercourse, seven counts of aggravated indecent assault,
eighteen counts of statutory sexual assault, twenty-five counts of indecent
assault, and one count each of unlawful contact with a minor and corruption
of a minor.



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