J-S64038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KHALID ALTAWARH

                            Appellant                  No. 52 EDA 2016


                Appeal from the PCRA Order December 7, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0004369-2009


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED SEPTEMBER 09, 2016

        Appellant Khalid Altawarh appeals from the order entered in the Court

of Common Pleas of Bucks County denying, after an evidentiary hearing, his

first petition filed under the PCRA.1 Appellant presents ineffective assistance

of trial counsel claims, and after a careful review, we affirm.

        Following the brutal attack and rape of L.B. in her home on May 8,

2009, Appellant was arrested and charged with various crimes. Represented

by counsel, in December 2009, Appellant proceeded to a jury trial, at which

numerous witnesses, including L.B. and Appellant, testified.

        Specifically, L.B. testified that she and Appellant were romantically

involved; however, the relationship deteriorated with L.B. ultimately telling
____________________________________________


1
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.


*Former Justice specially assigned to the Superior Court.
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Appellant the relationship was over.        N.T., jury trial, 12/4/09, at 41.

However, early in the morning on May 8, 2009, Appellant appeared at L.B.’s

house, which is isolated, and asked for a ride to the bus station. Id. at 51-

52. Since the bus station was near L.B.’s place of employment, she agreed,

went to the kitchen to get a cup of coffee, and then started up the stairs to

finish dressing for work. Id. at 51-55.

      L.B. indicated that, as she approached the top of the stairs, Appellant

grabbed her by the hair, punched her in the face, and said, “I waited till the

last minute to come and get you, you bitch.”      Id. at 56. Appellant threw

L.B. down the steps, pulled her into the utility room, raped her vaginally,

and digitally penetrated her rectum.      Id. at 57-58.   Thereafter, Appellant

held a knife to L.B.’s throat, demanded money, punched her several times in

the face with a closed fist, and banged her head repeatedly against a stone

threshold. Id. at 61-69.

      L.B. testified that, at one point, Appellant permitted her to go outside,

and, seizing the opportunity, L.B. started screaming and running; however,

Appellant tackled her, hit her several times with a rock, and stuck his fingers

down her throat to make her stop screaming. Id. at 73. Appellant bit L.B.

several times, and, when Appellant began dragging her back into the house,

L.B. grabbed onto a fence post. Id. at 73-74. Appellant struck her shoulder

several times with a rock, resulting in Appellant successfully forcing L.B.

back into the house. Id. at 74.




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        L.B. indicated she freed herself when an acquaintance, Joe Zak,

unexpectedly knocked on the front door, giving L.B. the opportunity to run

out the back door. Id. at 77. Mr. Zak placed L.B. into his vehicle, drove

away, and called 911. Id. at 77-78. The responding ambulance took her to

the hospital.

        Appellant testified that the sexual intercourse at issue was consensual,

the parties customarily engaged in violent acts during their sexual

encounters, and some of the injuries sustained by L.B. occurred when she

accidentally fell. N.T., jury trial, 12/8/9, at 186-212, 226-287.

        At the conclusion of all testimony, the jury convicted Appellant of

numerous      crimes,     including    attempted   homicide,   rape   by   forcible

compulsion, and aggravated assault,2 and on April 28, 2010, the trial court

sentenced Appellant to an aggregate of fourteen to twenty-eight years in

prison.

        Following the denial of Appellant’s timely post-sentence motion,

Appellant filed a counseled direct appeal averring: (1) the trial court erred in

denying Appellant’s request for a continuance on the eve of trial; (2) the

trial court erred in precluding defense evidence regarding the prior

consensual sexual relationship between the parties; (3) the trial court erred

in denying Appellant’s motion for a mistrial related to the testimony of Police


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2
    18 Pa.C.S.A. §§ 901, 3121, and 2702, respectively.



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Officer Timothy Dockery regarding blood evidence found at the crime scene;

and (4) the trial court erred in permitting the Commonwealth’s DNA expert

to testify as a blood spatter/contact expert.       A three-judge panel of this

Court found no relief was due and affirmed Appellant’s judgment of

sentence.     Commonwealth v. Altawarh, No. 299 EDA 2011 (Pa.Super.

filed 3/8/12) (unpublished memorandum).            The Supreme Court denied

Appellant’s subsequent petition for allowance of appeal on December 31,

2012.

        On or about August 16, 2013, Appellant filed a timely pro se PCRA

petition, and new counsel was appointed to represent Appellant. Following

amendments to the petition, the PCRA court held an evidentiary hearing on

May 16, 2014, at which trial counsel and Appellant testified.          By order

entered on December 7, 2015, finding no merit to Appellant’s claims, the

PCRA court denied Appellant’s PCRA petition. This timely counseled appeal

followed, and all Pa.R.A.P. 1925 requirements have been met.

        On appeal, Appellant presents claims of ineffective assistance of trial

counsel.    In reviewing Appellant’s particular claims, we are mindful of the

following legal precepts:

              Our review of a PCRA court's decision is limited to
        examining whether the PCRA court's findings of fact are
        supported by the record, and whether its conclusions of law are
        free from legal error. We view the findings of the PCRA court
        and the evidence of record in a light most favorable to the
        prevailing party. . . .The PCRA court's credibility determinations,
        when supported by the record, are binding on this Court;



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     however, we apply a de novo standard of review to the PCRA
     court's legal conclusions.

Commonwealth v. Mason, ___ Pa. ___, 130 A.3d 601, 617 (2015)

(quotation marks, quotations, and citations omitted).

            In order to obtain relief under the PCRA based on a claim
     of ineffectiveness of counsel, a PCRA petitioner must satisfy the
     performance and prejudice test set forth in Strickland v.
     Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
     (1984). In Pennsylvania, we have applied the Strickland test
     by requiring a petitioner to establish that: (1) the underlying
     claim has arguable merit; (2) no reasonable basis existed for
     counsel's action or failure to act; and (3) the petitioner suffered
     prejudice as a result of counsel's error, with prejudice measured
     by whether there is a reasonable probability that the result of
     the proceeding would have been different. Commonwealth v.
     Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001). Counsel is
     presumed to have rendered effective assistance, and, if a claim
     fails under any required element of the Strickland test, the
     court may dismiss the claim on that basis. Commonwealth v.
     Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).

Commonwealth v. Vandivner, ___ Pa. ___, 130 A.3d 676, 680 (2015).

     Regarding the arguable merit prong, a claim has arguable merit where

the factual predicate is accurate and “could establish cause for relief.”

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa.Super. 2013) (en

banc). A determination as to whether the facts asserted present a claim of

arguable merit is a legal one. Id.

           Relating to the reasonable basis prong, [g]enerally, where
     matters of strategy and tactics are concerned, counsel's
     assistance is deemed constitutionally effective if he chose a
     particular course that had some reasonable basis designed to
     effectuate his client's interests. Courts should not deem
     counsel's strategy or tactic unreasonable unless it can be
     concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.

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      Also [a]s a general rule, a lawyer should not be held ineffective
      without first having an opportunity to address the accusation in
      some fashion. . . .The ultimate focus of an ineffectiveness
      inquiry is always upon counsel, and not upon an alleged
      deficiency in the abstract.
             Relating to the prejudice prong of the ineffectiveness test,
      the PCRA petitioner must demonstrate that there is a reasonable
      probability that, but for counsel's error or omission, the result of
      the proceeding would have been different. . . .[I]t is well-settled
      that a court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead,
      if a claim fails under any necessary element of the Strickland
      test, the court may proceed to that element first.

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012)

(quotation marks, quotations, and citations omitted).

      Appellant first claims that trial counsel was ineffective in failing to

object to L.B.’s testimony regarding the injuries, which she suffered as a

result of the attack.    Appellant contends L.B. was not qualified to offer

testimony regarding her injuries since such testimony was outside of the

purview of a lay witness.     Appellant specifically challenges trial counsel’s

failure to object to the following portion of the victim’s trial testimony given

on direct examination:

      Q: [L.B.], you had testified earlier that you were treated at
      Doylestown Hospital; is that correct?
      A: Yes.
      Q: And can you tell the jury what injuries you sustained[?]
      A: I had a concussion, perforated eardrum, cuts and bruises all
      over my face and bruises on my neck, cuts, bite marks on my
      arms and my back, bruising and cuts on my back, on my legs;
      cuts and bruises on my legs and on my hands and a shoulder
      injury as well.
      Q: And did you have any injuries or cuts that required stitches?
      A: Yes, on my arm.
      Q: Explain that to the jury, please.

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       A: I had a wound on my arm, on my inner arm that required
       four stitches.
       Q: Do you recall how you got that injury?
       A: I don’t.
       Q: So you had testified earlier you had bleeding from your nose?
       A: Right.
       Q: You had bleeding from your arm?
       A: (Witness nods head up and down).

N.T., jury trial, 12/4/09, at 121-22.

       As it relates to the arguable merit inquiry, the applicable version of

Pennsylvania Rule of Evidence 701, addressing opinion testimony by a lay

witness, provides, in pertinent part:

       If the witness is not testifying as an expert, the witness'
       testimony in the form of opinions or inferences is limited to
       those opinions or inferences which are rationally based on the
       perception of the witness, helpful to a clear understanding of the
       witness' testimony or the determination of a fact in issue, and
       not based on scientific, technical, or other specialized knowledge
       within the scope of Rule 702.

Pa.R.E. 701.3

       Lay witnesses may testify to someone's readily observable physical

condition    or    appearance      that    does   not   require   medical   training.

Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284 (1998).

             A lay witness may testify as to certain matters involving
       health, the apparent physical condition of a person, and as to
       obvious symptoms, but [her] testimony must be confined to
____________________________________________


3
  Effective March 18, 2013, our Supreme Court rescinded and replaced this
rule of evidence. See Pa.R.E. 701, Comment. However, Appellant's trial
preceded the effective date of the revised rule and, thus, we apply the
former version of Rule 701 as set forth herein.




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        facts within [her] knowledge, and may not be extended to
        matters involving the existence or non-existence of a disease,
        which is only discoverable through the training and experience of
        a medical expert. Thus, a layperson may not testify to the
        presence of an underlying disease such as a heart condition or
        osteomyelitis. This is because such conditions are not readily
        observable by the naked eye or even by a physical examination
        unless symptoms are ascertained and appropriate tests made.
        Travellers Ins. Co. v. Heppenstall Co., 360 Pa. 433, 61 A.2d
        809 (1948) (lay witnesses are barred from testifying to the
        existence or nonexistence of a disease or disorder, the discovery
        of which requires the training and experience of a medical
        expert)[.]
              [Further,] if lay opinion testimony would confuse, mislead
        or prejudice the jury, or would waste time, it may be excluded.

Cominsky v. Donovan, 846 A.2d 1256, 1259 (Pa.Super. 2004) (citations,

quotations, and quotation marks omitted).

        In the case sub judice, L.B.’s testimony regarding her cuts, bruises,

bite marks, bleeding from her nose, and the receipt of four stitches to her

inner    arm   are   certainly   readily   observable   physical   conditions   or

appearances that do not require medical training.           See Counterman,

supra; Pa.R.E. 701.      Moreover, we conclude L.B.’s testimony as to these

injuries did not confuse or mislead the jury and did not waste time.

Cominsky, supra. Thus, Appellant has not established that his challenge to

this portion of L.B.’s testimony has arguable merit.

        Assuming, arguendo, L.B.’s testimony that she suffered a concussion

and perforated eardrum was prohibited under Rule 701, and, thus, there is

arguable merit to this portion of Appellant’s claim, we agree with the PCRA




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court that trial counsel provided a reasonable basis for failing to object. See

PCRA Court’s Opinion, filed 12/8/15, at 6.

      In analyzing the PCRA hearing testimony, and concluding trial counsel

had a reasonable basis, the PCRA court explained as follows:

             Even assuming that trial counsel could have successfully
      objected to the victim’s testimony as to her concussion and
      perforated eardrum, [trial counsel] had a reasonable basis for
      not objecting. At the May 16, 2014[,] PCRA hearing, [trial
      counsel] testified that he did not object because he believed the
      victim’s testimony on this point would further his own defense
      strategy: to contrast the victim’s account of the incident and the
      injuries sustained with the lack of physical evidence
      corroborating her testimony.       In other words, trial counsel
      intended to use the victim’s testimony to further his own
      argument that her account was exaggerated and, therefore, not
      credible.

PCRA Court’s Opinion, filed 12/8/15, at 6 (citations to record omitted).

      The PCRA court’s factual findings regarding trial counsel’s reasons for

not objecting are supported by the record, see N.T., PCRA hearing, 5/16/14,

at 26-28, and its conclusions drawn from these factual findings are free from

legal error.   See Koehler, supra (indicating counsel will not be deemed

ineffective if his course of action had some reasonable basis designed to

effectuate his client’s interests).   Accordingly, we conclude the PCRA court

properly found trial counsel was not ineffective on this basis.

      Appellant next claims trial counsel was ineffective in failing to file a

written notice of his intent to introduce evidence of L.B.’s past sexual




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relations with Appellant as was required by the Rape Shield Law, 18

Pa.C.S.A. § 3104(b).4 Appellant claims that trial counsel’s failure to file the

required written notice resulted in limited cross-examination of L.B. as to her

prior practice of consensually engaging in particular sex acts with Appellant,

which according to Appellant, were of the type that led to L.B.’s injuries in

the case sub judice and tended to show the instant sexual intercourse was

consensual.5      Assuming, arguendo, Appellant has demonstrated his claim

has arguable merit and counsel lacked a reasonable basis for his inaction,

we conclude Appellant has failed to demonstrate he was prejudiced by

counsel’s omission.

       In rejecting Appellant’s ineffective assistance of counsel claim, the

PCRA court indicated, in relevant part, the following:

             [Appellant] has failed to establish that [trial counsel’s]
       decision [not to file a written notice] prejudiced him in any way.
       The victim herself admitted that she had previously engaged in
       consensual sexual intercourse with [Appellant], and [Appellant]

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4
  As our Supreme Court has held: “The purpose of the Rape Shield Law is to
prevent a sexual assault trial from denigrating into an attack upon the
victim's reputation for chastity.” Commonwealth v. Johnson, 536 Pa.
153, 158, 638 A.2d 940, 942 (1994) (citation omitted).
5
  On direct appeal, Appellant averred generally that the trial court erred in
precluding him from presenting evidence regarding prior, consensual sexual
relations he had with L.B. However, this Court declined to reach the merits
of the issue. More specifically, noting that 18 Pa.C.S.A. § 3104(b) required
Appellant to submit a written motion at the time of trial, and the certified
record contained no such motion, we found the issue to be waived.
Altawarh, No. 299 EDA 2011, at 6-7.



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     described at considerable length the specific sexual acts in which
     he and the victim allegedly engaged.
            Moreover, to the extent that the trial court precluded
     [Appellant] from cross-examining the victim regarding specific
     sexual acts in which she had previously engaged with
     [Appellant], the court did not base its ruling on the fact that trial
     counsel had not filed a written motion pursuant to [S]ection
     3104. Indeed, the court permitted counsel several opportunities
     throughout the trial to argue why he should be permitted to
     cross-examine the victim on these specific sexual practices, and
     the court never denied [Appellant’s] motion for failure to file [a]
     written notice.
                                      ***
            [Appellant] cannot establish that the outcome of the trial
     would have been different. Whether. . .[Appellant] and the
     victim engaged in certain sexual acts on other occasions was not
     proof that she consented on the date of the offense.
     Nevertheless, [Appellant] was permitted to testify extensively
     regarding the so-called “rough sex” in which he and the victim
     had [allegedly] engaged.         The jury was provided ample
     opportunity to determine whether “rough sex” was a credible
     explanation for the victim’s injuries on the date of the offense,
     as [Appellant] claimed. The jury also had the opportunity to
     weigh the victim’s credibility when she admitted that she had
     previously engaged in consensual sex with [Appellant], but had
     not done so on the date of the offense. Trial counsel was able to
     argue in his closing [argument] that a prior, consensual
     relationship existed between the victim and [Appellant].
            The [trial court] has carefully reviewed this issue and after
     studying it does not know what [Appellant] thinks would have
     come out on cross-examination that would have helped him
     convince the jury that he did not rape [and physically injure] the
     victim but rather they engaged in consensual sex. There was
     exhaustive cross-examination of the victim and detailed
     testimony of what she says occurred.

PCRA Court’s Opinion, filed 12/8/15, at 11-13.

     We agree with the PCRA court’s reasoning in this regard and conclude

Appellant has failed to demonstrate there is a reasonable probability that,

but for counsel's error or omission, the result of the proceeding would have


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been different. Koehler, supra. Accordingly, we agree with the PCRA court

that Appellant was not entitled to relief on this ineffective assistance of

counsel claim.

     For all of the foregoing reasons, we affirm.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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