J-S69010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BARRY LEE RHODES

                            Appellant                 No. 469 MDA 2016


            Appeal from the PCRA Order Entered November 3, 2015
              In the Court of Common Pleas of Lancaster County
               Criminal Division at No: CP-36-CR-0000013-2011


BEFORE: STABILE, DUBOW, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED JANUARY 12, 2017

        Appellant, Barry Lee Rhodes, appeals nunc pro tunc from the

November 3, 2015 order denying in part the relief sought in Appellant’s

petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46. We affirm.

        On July 15, 2011, a jury found Appellant guilty of numerous charges 1

arising from his sexual victimization of two minor girls, K.L.E. and K.M.E.,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The jury found Appellant guilty of nine counts of indecent assault of a
person less than 13 years of age (18 Pa.C.S.A. § 3126(a)(7)), one count of
indecent assault of a person with a mental disability (18 Pa.C.S.A.
§ 3126(a)(6)), two counts of attempted rape of a child and one count of
rape of a child (18 Pa.C.S.A. §§ 901(a) and 3121(c)), one count one count
of aggravated indecent assault of a person less than 13 years of age
(Footnote Continued Next Page)
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who were sisters and Appellant’s great-nieces. On September 29, 2011, the

trial court found Appellant to be a sexually violent predator (“SVP”) and

sentenced him to an aggregate 21 to 42 years of incarceration.      The trial

court denied Appellant’s timely post-sentence motion on October 11, 2011.

Appellant filed a timely notice of appeal on November 10, 2011, and this

Court affirmed the judgment of sentence on October 1, 2012. Appellant did

not seek allowance of appeal to the Pennsylvania Supreme Court. He filed a

timely pro se PCRA petition on September 25, 2013. Appointed counsel filed

an amended petition on May 4, 2015. The PCRA court conducted a hearing

on July 7, 2015. On November 3, 2015, the PCRA court vacated Appellant’s

conviction for one of the counts of indecent assault of a person less than 13

years of age (18 Pa.C.S.A. § 3126(a)(7)), but otherwise denied relief. The

PCRA court’s order did not affect the aggregate sentence.

      Due to an administrative oversight in PCRA counsel’s office, Appellant

did not file a timely appeal. On February 23, 2016, Appellant filed a second

PCRA petition, seeking reinstatement of his right to appeal.     The second

petition alleged that counsel effectively abandoned Appellant, and that

Appellant directed counsel to file a petition as soon as Appellant learned of

counsel’s abandonment.           On March 1, 2016, the PCRA court entered an
                       _______________________
(Footnote Continued)

(18 Pa.C.S.A. § 3125(a)(7)), one count of involuntary deviate sexual
intercourse with a person with a mental disability (18 Pa.C.S.A.
§ 3123(a)(5)), and two counts of corruption of minors (18 Pa.C.S.A.
§ 6301(a)(1)).



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order reinstating Appellant’s right to appeal from the November 3, 2015

order.      The PCRA court relied on Commonwealth v. Bennett, 930 A.2d

1264 (Pa. 2007), in which our Supreme Court held that a second or

subsequent PCRA petition can be timely under § 9545(b)(1)(ii)2 if PCRA

counsel abandons the petitioner and if the petitioner pleads and proves that

he or she could not have learned of counsel’s abandonment by the exercise

of diligence. In this case, Appellant pled and proved counsel’s abandonment

to the PCRA court’s satisfaction.              The Commonwealth did not oppose

Appellant’s second petition.         We therefore conclude the PCRA court had

jurisdiction to entertain the second petition and reinstate Appellant’s right to

appeal from the November 3, 2015 order.

       Appellant raises three issues for our review:

       I.      Did the trial court err in holding that trial counsel was not
               ineffective for failing to object to the prosecutor’s repeated
               statements of personal opinion, calling [Appellant] a liar,
               and the police truth tellers, for failing to request curative
               instructions, and for failing to raise and brief this issue on
               appeal?

       II.     Did the trial court err in finding that trial counsel was not
               ineffective for failing to object to Dr. Hoshauer’s
               statements that she had examined three siblings, that she
____________________________________________


2
  The cited section provides an exception to the jurisdictional one-year time
bar of § 9545(b)(1) where the petitioner pleads and proves that “the facts
upon which the claim is predicated were unknown to the petitioner and could
not have been ascertained by the exercise of due diligence.” 42 Pa.C.S.A.
§ 9545(b)(1)(ii).




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             asked ‘who told first?’ and for failing to object      to the
             admission, as substantive evidence, of [one            of the
             victims’] statements to Dr. Hoshauer, naming her       alleged
             abuser and describing the alleged abuse, and her       actions
             in response to the alleged abuse?

      III.   Did the trial court err in finding that trial counsel was not
             ineffective for failing to effectively and properly impeach
             [one of the victims]. with her prior inconsistent statements
             to Dr. Hoshauer and Trooper [Derek A.] Koch?

Appellant’s Brief at 4.

      We must determine whether the record supports the PCRA court’s

findings and whether its decision is free of legal error. Commonwealth v.

Pitts, 981 A.2d 875 878 (Pa. 2009).       First, Appellant argues counsel was

ineffective for failing to object to the prosecutor’s remarks during his

opening statement and closing argument.        This claim is cognizable under

§ 9543(a)(2)(ii) of the PCRA. To succeed, a petitioner must plead and prove

(1) that the underlying claim is of arguable merit; (2) that counsel had no

reasonable strategic basis for his or her action or inaction; and (3) that

counsel’s mistake prejudiced Appellant, i.e., that there is a reasonable

probability that the outcome of the proceeding would have been different but

for counsel’s error. Commonwealth v. Bridges, 886 A.2d 1127, 1131 (Pa.

2005).

      “A prosecutor’s remarks are fair if they are supported by evidence or

contain      inferences   reasonably     derived    from     that     evidence.”

Commonwealth v. Robinson, 877 A.2d 433, 441 (Pa. 2005) (citing

Commonwealth v. Carter, 643 A.2d 61, 75 (Pa. 1994). “[P]rosecutorial


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misconduct does not occur unless the unavoidable effect of the comments at

issue was to prejudice the jurors by forming in their minds a fixed bias and

hostility toward the defendant, thus impeding their ability to weigh the

evidence objectively and render a true verdict.” Id. (citing Commonwealth

v. Paddy, 800 A.2d 294, 316 (Pa. 2002)). “Due to the nature of a criminal

trial, both sides must be allowed reasonable latitude in presenting their

cases to the jury. Id. “A prosecutor’s comments must be reviewed in the

context in which they were made.”      Id.   Mere “oratorical flair” during a

prosecutor’s summary of the evidence of the defendant’s criminal acts is not

misconduct.   Commonwealth v. Chmiel, 889 A.2d 501, 538 (Pa. 2005),

cert. denied, 549 U.S. 848 (2006).

      Our Supreme Court has held that “[i]t is improper for a prosecutor to

offer his or her personal opinion as to the guilt of the accused or the

credibility of any testimony.”   Commonwealth v. Hutchinson, 25 A.3d

277, 307 (Pa. 2011).     “However, it is well within the bounds of proper

advocacy for the prosecutor to summarize the facts of the case and then to

ask the jury to find the accused guilty based on those facts.” Id.

      The prosecutor began his opening statement as follows:

            There is a famous novel of the 19th Century, which [sic]
      two men sit down and one man discusses the heavy weight, the
      binding power of his lies and misdeeds.

           In this case, ladies and gentlemen, you will see that the
      defendant cannot escape his.

N.T. Trial, 7/13/11, at 53. He continued:


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            At some point in time, ladies and gentlemen, you’re going
      to hear from a series of troopers. Troopers who, during that
      time period, in the early stages of the investigation, interviewed
      the defendant. You’ll hear how the conversation with Trooper
      George Forsyth, it initially started out as complete denials,
      turning into perhaps maybe I touched them when we were
      wrestling, comments on behalf of the defendant.

            You’ll then hear how the defendant met with Trooper Tom
      Waters and how what originally started with denials there turned
      into comments and admissions regarding certain children
      performing oral sex on him, specifically [K.M.E.].

             You’ll hear about how he justified the behavior. Pushed
      the blame onto these children. And then you’ll hear an interview
      with Trooper Gerow and the defendant, where, again, the blame
      lies somewhere else.

Id. at 55.

      Near the end of his opening, the prosecutor said:

            There’s no question, ladies and gentlemen, that as this
      case moves on, as you hear from all these people, it’s going to
      be clear, from what I said at the start of my statement here
      before you today, that time may have passed, but the defendant
      cannot escape his lies and misleads [sic], much like that person
      in that conversation in that 19th Century novel.

Id. at 58.

      Appellant claims the prosecutor committed misconduct by expressing

his personal opinion on Appellant’s lack of credibility. Trial counsel explained

at the PCRA hearing that the prosecutor did not express, during his opening

statement, a personal belief that Appellant was a liar. N.T. Hearing, 7/7/15,

at 9-10.

      Our review of the prosecutor’s opening statement confirms that the

prosecutor simply discussed what he believed evidence would show:          that


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Appellant gave inconsistent statements regarding the alleged acts, and that

Appellant did not accept blame for the alleged acts.     These comments did

not express the prosecutor’s personal belief as to Appellant’s credibility.

Further, we believe the reference to the 19th century novel was mere

rhetorical flair. Appellant’s argument that trial counsel should have objected

to the prosecutor’s opening statement lacks arguable merit.

      During closing, the prosecutor again reviewed the evidence of

Appellant’s alleged dishonesty:

             Now, this defendant—I told you in the beginning, the
      1880s novel about a man that is weighed down by his burdens.
      Ladies and gentlemen, this is that man. He has told so many
      lies he can’t even keep them straight.

             First of all, it was nothing. I didn’t do anything. And then
      all of a sudden it turned into, well, maybe I touched them when
      we were wrestling. And then it turned into, well, there was this
      time, I thought maybe I was dreaming about [K.M.E.] giving me
      a blowjob. But then I woke up and she was just masturbating
      me. And then, no, you know what happened? When I think
      about it, she was sucking on my penis.

            And then yesterday on the stand—again, your recollection
      of the testimony, your recollection, I don’t even think he kept
      that straight on the stand yesterday as to whether or not she
      was sucking him or whether or not she was masturbating him.

            Regardless, he asks you to believe that as he’s sleeping,
      [K.M.E.] just comes in and decides, it’s time to masturbate Uncle
      Barry. I argue to you that that’s not credible.

N.T. Trial, 7/15/11, at 350-51. The prosecutor continued,

            The statements of the defendant are damning. To believe
      that [K.M.E.] is so possessed with whatever of the defendant,
      some attraction to the defendant or need to be with the
      defendant, that as a small child she goes in and sucks on his
      penis? And he says himself, I didn’t call. I didn’t tell anybody.

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     He’s concerned about being extorted.       Well, did you call the
     police? No.

           Ladies and gentlemen, I submit to you that that’s not
     credible.

           He told these troopers glimmers. Through so many lies,
     these troopers told you the glimmers of the truth. His world and
     the entire defense has pushed the blame onto others.

Id. at 354-55. Finally,

           I told you at the beginning about that novel. Since I think
     you have a significant understanding at this point of this case,
     let me shed a little more light on that novel.

             It was written by Charles Dickens in 1843. As those two
     men spoke, a guy by the name of Ebenezer said to Jacob Marley,
     speak some peace to me, shocked by the image of his longtime
     friend under heavy weights and tethers. Jacob Marley said, I
     can’t, I can’t. Let it be a warning to you but I can’t. Every one
     of these weights I crafted myself with the lies and misdeeds I did
     in life.

           And the defendant is before you now under the weight of
     his own misdeeds.

Id. at 359.

     At the conclusion of the prosecutor’s closing argument, defense

counsel moved for a mistrial, arguing the prosecutor called Appellant a liar.

Id. at 361-62. The trial court denied the motion, and defense counsel did

not move for a curative instruction. Appellant now claims defense counsel

was ineffective for failing to move for a curative instruction. We disagree.

In order to provide context, we have quoted the prosecutor’s closing at

greater length than did Appellant in his brief. In our view, the prosecutor

permissibly argued Appellant’s guilt based on the facts of the case.


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Appellant gave statements to the police and testified at trial. In doing so, he

ran the risk that the prosecutor would use his statements against him. The

prosecutor did not offer a blanket assertion that Appellant was a liar.

Rather, the prosecutor argued that some of Appellant’s exculpatory

statements were unworthy of belief in light of other facts in evidence.

Appellant’s assertion of ineffective assistance fails because the underlying

issue lacks arguable merit.

      Next, Appellant argues trial counsel was ineffective for failing to object

on several occasions to the testimony of Dr. Cathy Hoshauer, a pediatrician.

The Commonwealth presented Dr. Hoshauer as an expert witness. Appellant

argues that Dr. Hoshauer’s hearsay account of one of the victims’

statements was admissible only as impeachment evidence.            In addition,

Dr. Hoshauer testified that the two victims were among three siblings she

examined. Appellant argues the reference to the third sibling was improper

and prejudicial.   The Commonwealth did not charge Appellant with any

criminal wrongdoing toward the third sibling.

      The Commonwealth and the PCRA court note that the victim’s

statements to Dr. Hoshauer are admissible under Pa.R.E 803(4):

           (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 sensations, or the inception or general character of the


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       cause or external source thereof, insofar as reasonably pertinent
       to treatment, or diagnosis in contemplation of treatment.

Pa.R.E. 803(4).

       The record reflects that Dr. Hoshauer examined the two victims and

reached a diagnosis of child abuse for one of them. N.T. Trial, 7/13/11, at

136-37.3

             Q.   After going through your interview with [K.L.E.],
       reviewing her, did you ultimately reach a diagnosis?

              A.     Yes.

              Q.     What was that diagnosis?

              A.     Child Abuse.

                                           ...

            Q.   When you say child abuse, can you explain what you
       mean by child abuse?

              A.    The definition of child sexual abuse is that a child,
       from birth to 18, is the victim of inappropriate sexual contact by
       someone else for their own sexual gratification. That’s the
       definition of child sexual abuse.

Id. In addition, Dr. Hoshauer offered the following:

            Q.    Dr. Hoshauer, when you performed this exam, what
       was your goal in conducting the exam? What’s –

            A.   To be sure that the             child’s fine. Because, as I
       mentioned, the vast majority of            children that I see have a
       normal exam. The reasons why              I do these exams is not so
       much, you know, CSI, looking for          DNA or anything like that. I

____________________________________________


3
  The result for the second victim was normal, although that result did not
exclude criminal conduct. Id. at 141.



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     really just want to help the child to know that they’re fine and
     that they can move on and their bodies are fine.

Id. at 146.

     Appellant asserts, without citation to any evidence or legal authority,

that Dr. Hoshauer did not conduct her examination in contemplation of

treatment, and that the victim’s statements to Dr. Hoshauer are therefore

not admissible under Rule 803(4).      The PCRA court disagreed, and the

record supports the PCRA court’s decision.         Furthermore, statements

admissible under Rule 803(4) are admissible as substantive evidence.

Commonwealth v. Fink, 791 A.2d 1235, 1246 (Pa. Super. 2002). Finally,

as Appellant asserts in support of his third question presented, Dr. Hoshauer

testified to statements from K.L.E. that were inconsistent with some of the

statements K.L.E. made at trial.   In that sense, Dr. Hoshauer’s testimony

was helpful to the defense.      The PCRA court did not err in rejecting

Appellant’s argument pertaining to Dr. Hoshauer’s account of the victim’s

prior statements.

     Appellant also argues that counsel should have objected when Dr.

Hoshauer discussed portions of the victim’s statement in which the victim

named Appellant as the perpetrator. Appellant’s Brief at 25. Appellant cites

pages 130 and 131 of the July 13, 2011 trial transcript.    The PCRA court

acknowledged that statements identifying the alleged perpetrator are not

admissible under Rule 803(4). PCRA Court Opinion, 11/3/15, at 8 n.7 (see

Pa.R.E. 803(4), comment: “Statements as to causation may be admissible,

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but statements as to fault or identification of the person inflicting harm have

been held to be inadmissible.”).       Indeed, the record reflects that the

prosecutor asked Dr. Hoshauer if the victim told Dr. Hoshauer what occurred

between the victim and Appellant. N.T. Trial, 7/13/11, at 130. Thus, trial

counsel should have objected to Dr. Hoshauer’s testimony to the extent that

it constituted a hearsay identification of Appellant as the perpetrator.

Regardless, this victim testified at trial and identified Appellant as the

perpetrator from the witness stand. Appellant had an opportunity to cross-

examine her, and the jury was able to assess the credibility of the victim’s

identification testimony.    Under these circumstances, we cannot conclude

that counsel’s error prejudiced Appellant.

      Next, Appellant argues trial counsel was ineffective for failing to object

when Dr. Hoshauer mentioned that she examined a third sibling, and that

she asked one of the victims, “[W]ho told first?”         We quote the relevant

portion of the transcript:

            Q.    Specifically in regards to [K.L.E.], what did she
      indicate was the reason she was there?

            A.    Okay. She – I had seen her two other siblings prior
      to her. She was the third of the family that I was seeing. So I
      asked her to tell me who told first. That’s how we started the
      conversation. And she explained that [K.M.E.] told first. And
      then I asked her to tell me –

            Q     If I could just stop you right there.

            [Prosecutor]: Judge, may we approach briefly?

            THE COURT: All Right.


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            (A sidebar discussion was held off the record.)

N.T. Trial, 7/13/11, at 130.

      At the PCRA hearing, defense counsel stated he did not object to

Dr. Hoshauer’s mention of the third sibling because the jury could infer that

the Commonwealth did not charge Appellant with any criminal conduct

toward her.       Appellant offers no substantive argument in response.

Appellant states, “Dr. Hoshauer should not have been permitted to mention

examination of a third sister, as this testimony was irrelevant and prejudicial

to [Appellant].   PCRA counsel does not agree that the jury would simply

have inferred nothing happened to the third sister.” Appellant’s Brief at 27.

As noted above, Appellant bore the burden of pleading and proving all three

prongs of his ineffective assistance of counsel claim including prejudice.

Appellant does not explain how the mention of a third sister prejudiced his

case. We cannot conclude that a reasonable exists that the outcome of trial

would have been different absent Dr. Hoshauer’s mention of a third sister.

      Concerning the “who told first” portion of Dr. Hoshauer’s testimony,

the record reveals that K.L.E. told Dr. Hoshauer that K.M.E.—who did not

testify at trial—told first. Appellant does not develop any legal argument on

this point in his brief, stating only that “Dr. Hoshauer should not have been

permitted to testify that she asked “who told first,” as though assuming that

the allegations against [Appellant] were true, and to testify that the answer

was K.L.E.’s sister, K.M.E., who did not testify at trial.” Appellant’s Brief at



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27. Appellant never explains how, given the other evidence against him--

including K.L.E.’s testimony and Appellant’s own statements—counsel’s

timely objection would have altered the outcome of Appellant’s trial.

Appellant has failed to establish that counsel was ineffective.

         Appellant’s final argument is that trial counsel was ineffective for

failing to cross-examine K.L.E. about her prior inconsistent statements. As

Appellant explains in his brief, many of K.L.E.’s prior inconsistent statements

came into evidence through Dr. Hoshauer’s testimony. Appellant’s Brief at

29-30. Appellant also argues that K.L.E.’s assertions to Trooper Derek Koch,

in statements dated April 20, 2001 and June 27, 2001, were inconsistent

with her trial testimony. Appellant’s Brief at 34-36.

         The record reveals that defense counsel re-called K.L.E. during his

case-in-chief and examined her on her prior statement that a cousin had

witnessed some of the abuse. N.T. Trial, 7/15/11, at 310. K.L.E. admitted

stating that her cousin witnessed some of the abuse. Id. Defense counsel

then called K.L.E.’s cousin, who denied ever witnessing Appellant abuse

K.L.E.     Id. at 313.    Thus, defense counsel did produce evidence of a

significant inaccuracy in one of K.L.E.’s prior statements.

         At the PCRA hearing, trial counsel testified that he believed the jury

would give K.L.E. some “leeway” as far as her memory of the events, given

that the trial took place well after the alleged abuse and given that K.L.E.

was very young when the alleged abuse occurred. N.T. Hearing, 7/7/15, at


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24. Counsel also testified that he did not wish to appear to be badgering a

young witness who was testifying about a traumatic experience that

occurred when the witness was much younger.         Id. at 35.    Thus, counsel

was content to allow the prior inconsistent statements to come in through

another witness. Id.

      In summary, the record reflects that defense counsel re-called one of

the victims during the defense’s case-in-chief to highlight a significant

inaccuracy in one of her prior statements.      Other inconsistent statements

came in through Dr. Hoshauer.       Thus, the factual premise of Appellant’s

assertion of ineffective assistance is not entirely accurate, and counsel

offered a reasonable basis for declining to cross-examine K.L.E. in detail

about all of her prior statements.     For these reasons, we conclude that

Appellant’s assertion of counsel’s ineffectiveness lacks merit.

      In summary, we have concluded that Appellant failed to prove that

defense counsel was ineffective, or that any of counsel’s errors were so

significant that, but for those errors, the outcome of trial would have been

different.   As explained above, Appellant ultimately admitted to sexual

contact with K.M.E. We therefore affirm the PCRA court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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