J-S25015-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.


DOUGLAS ELTON EWING

                        Appellant                   No. 2111 MDA 2012


            Appeal from the PCRA Order November 13, 2012
           In the Court of Common Pleas of Bradford County
          Criminal Division at No(s): CP-08-CR-0000004-2009
_____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.


DOUGLAS ELTON EWING

                        Appellant                   No. 2134 MDA 2012


              Appeal from the PCRA Order November 13, 2012
             In the Court of Common Pleas of Bradford County
            Criminal Division at No(s): CP-08-CR-0000005-2009




BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                        FILED SEPTEMBER 08, 2014

      Douglas Elton Ewing brings these consolidated appeals from the orders

entered on November 13, 2012, in the Court of Common Pleas of Bradford

County that denied, after an evidentiary hearing, his petitions filed pursuant
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to the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 9546.




                                                                 ed testimony
                                                             1
                                                                  Based upon

the following, we affirm.

       Around 2000, Ewing began sexually assaulting his live-

nine-year-old daughter, S.V., and, on some occasions, he sexually assaulted

              -year-

with S.V. In 2008, S.V. disclosed that Ewing frequently sexually assaulted

her over a period of approximately eight years, and that he did the same to

C.S. on a few occasions. C.S. later disclosed that Ewing engaged her in oral

sex and other sexual acts.

       Ewing was charged at CR-0000004-2009 for crimes perpetrated upon

S.V., and at CR-0000005-2009 for crimes perpetrated upon C.S. The cases

were consolidated for trial, and a jury trial was held on May 1, 2009.     At

CR-0000004-2009, Ewing was found guilty of rape of a minor, attempted

rape of a minor, involuntary deviate sexual intercourse, aggravated indecent

assault, and eight counts of corruption of minors. At CR-0000005-2009,

Ewing was found guilty of involuntary deviate sexual intercourse, aggravated


____________________________________________


1




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indecent assault, and corruption of minors. Ewing was sentenced to 29 to

                                         -0000004-

imprisonment at CR-0000005-2009, for an aggregate term of imprisonment

of 43 to 98 years. On direct appeal, this Court affirmed the judgments of

sentence. See Commonwealth v. Ewing, 23 A.3d 1094 (Pa. Super. 2011)

[1711 MDA 2009] (unpublished memorandum, filed January 24, 2011);

Commonwealth v. Ewing, 24 A.3d 448 [1712 MDA 2009] (Pa. Super.

2011) (unpublished memorandum, filed February 9, 2011).

       On May 23, 2011, Ewing filed pro se PCRA petitions at the separate

docket numbers, referenced above.              Counsel was appointed and amended

petitions were filed by counsel on behalf of Ewing.         On April 3, 2012, and

April 20, 2012, the PCRA court conducted an evidentiary hearing, and,

thereafter, denied PCRA relief. This consolidated appeal followed.2, 3

       Preliminarily, we state the principles that guide our review:

       Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA
       and whether the PCRA
       error. Commonwealth v. Phillips, 2011 PA Super 231, 31 A.3d
       317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,
       2005 PA Super 219, 877 A.2d 479, 482 (Pa. Super. 2005)),
____________________________________________


2

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Although
the PCRA judge did not author a Rule 1925(a) opinion due to his retirement,
the reasons for his ruling are fully set forth in his orders denying PCRA relief.
3
  By per curiam order of December 18, 2012, this Court consolidated sua
sponte the appeals at 2111 MDA 2012 and 2134 MDA 2012.



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     appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). A PCRA
     petitioner must establish the claim by a preponderance of the
     evidence. Commonwealth v. Gibson, 592 Pa. 411, 415, 925
     A.2d 167, 169 (2007).

     The essence of a claim of ineffective assistance of counsel is that

     between defense and prosecution that the trial was rendered
     unfair and the verdict rendered suspect. Commonwealth v.
     Collins, 585 Pa. 45, 59, 888 A.2d 564, 572 (2005).              As
     originally established by the United States Supreme Court in
     Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
     L. Ed. 2d 674 (1984), and adopted by Pennsylvania appellate
     courts, counsel is presumed to have provided effective
     representation unless a PCRA petitioner pleads and proves all of
     the following: (1) the underlying legal claim is of arguable merit;
                                                 objectively reasonable

     prejudice, to the effect that there was a reasonable probability of
                                                             See, e.g.,
     Commonwealth v. Natividad, 595 Pa. 188, 207, 938 A.2d
     310, 321 (2007); Commonwealth v. Steele, 599 Pa. 341, 961
     A.2d 786, 796 (2008); Commonwealth v. Dennis, 597 Pa.
     159, 950 A.2d 945, 954 (2008); Commonwealth v. Franklin,
     2010 PA Super 24, 990 A.2d 795, 797 (Pa. Super. 2010).

     To satisfy the prejudice prong of this test when raising a claim of
     ineffectiveness for the failure to call a potential witness at trial,
     our Supreme Court has instructed that the PCRA petitioner must
     establish that: (1) the witness existed; (2) the witness was
     available to testify for the defense; (3) counsel knew, or should
     have known, of the existence of the witness; (4) the witness was
     willing to testify for the defense; and (5) the absence of the
     testimony of the witness was so prejudicial as to have denied the
     defendant a fair trial. Commonwealth v. Sneed, 616 Pa. 1, 22-
     23, 45 A.3d 1096, 1108-09 (2012) (citing Commonwealth v.
     Johnson, 600 Pa. 329, 351, 966 A.2d 523, 536 (2009) and
     Commonwealth v. Clark, 599 Pa. 204, 222, 961 A.2d 80, 90
     (2008)).

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa. Super. 2014).




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      Ewing argues trial counsel was ineffective for failing to investigate and

present the medical testimony of Dr. John Weis, his primary care physician

beginning September 16, 1999.       Ewing also claims counsel was ineffective

                                                       -brother, who is two years




      With regard to Dr. Weis, Ewing claims that even though he and his



to the defense because he was able to both explain and verify that [Ewing]

had   significant   physical   problems   with   his    back   and   with   erectile




during this time frame                                 Id. at 18. Ewing contends

Weis would have also established that Ewing was not malingering when he

testified regarding his physical problems, or that his paramour was testifying

falsely. Id. at 19.

      With regard to R.W., Ewing

benefitted the defense in that his testimony would have given the

perspective of a child living within the home when these offenses allegedly

            Id. at 20. Ewing claims R.W. would have testified that S.V. had

a motive to lie about Ewing in order to have him removed from the home,


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because she was angry at Ewing over his rules and his forbidding her from

spending time with her boyfriend on her birthday.        In addition, Ewing

argues R.W. could have explained to the jury that he observed only

appropriate interactions between Ewing and S.V. Id.

      Following an evidentiary hearing at which Dr. Weis, R.W., Ewing and



relief, explaining:

            1. The testimony of Dr. John Weis would not have changed

      [Ewing] suffered from erectile dysfunction at the time he is
      alleged to have committed sexual offenses; however Dr. Weis
      treated the erectile dysfunction over a span of many months. Dr.
                                                                    did
      not testify that either the erectile dysfunction or the back
      problems would have prevented [Ewing] from committing the
      offenses. Indeed, during the time in question, [Ewing] fathered a
      child.

      Had Dr. Weis testified at trial, it is likely his testimony would
      have harmed [Ewing], because the testimony tended to establish
      that [Ewing] had both the desire and the ability to engage in
      sexual intercourse.

            2. The testimony of [R.W.] would have been of little
      probative value, if any. His testimony amounted to no more than
      his opinion that he observed no out [R.W.] manifestation of
      sexual abuse being committed by [Ewing]. Further, the
      testimony which [Ewing] sought to present at trial was that
      [R.W.] was present all the time, and that no sexual contact could
      have occurred. Defense counsel correctly assessed that [R.W.]
      could not credibly testify that he was present all the time[.]

            3. Trial counsel explained that the testimony of Weis and
      [R.W.] was cumulative, was established through other
      witnesses, and was not probative of any issue genuinely in
      dispute at trial and that he therefore believed the testimony to
      have no value.

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PCRA Court Orders, 11/13/2012.

     Based

analysis of the proferred testimony of Dr. Weis and R.W.   Accordingly, we

affirm the orders denying PCRA relief.

     Orders affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2014




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