J-S21021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ARIE OREN

                            Appellant                 No. 1940 EDA 2014


                   Appeal from the PCRA Order July 9, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0002955-2011


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                              FILED JULY 30, 2015

        Arie Oren, a physician, was charged with touching the vaginas of five

patients without their consent while treating them for weight loss.      A jury

found Oren guilty of four counts of aggravated indecent assault 1 and five

counts of indecent assault,2 and the trial court sentenced him to an

aggregate term of 4½-9 years’ imprisonment.          Oren did not file a direct

appeal, electing instead to file a timely petition under the Post Conviction

Relief Act (“PCRA”)3 alleging ineffective assistance of trial counsel. Following
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3125.
2
    18 Pa.C.S. § 3126.
3
    42 Pa.C.S. § 9541 et seq.


                                               1
J-S21021-15



an evidentiary hearing, the PCRA court denied Oren’s petition. Oren filed a

timely appeal, and both Oren and the PCRA court complied with Pa.R.A.P.

1925. Because none of Oren’s arguments warrant relief, we affirm.

        The following evidence was adduced at trial.      Oren ran a medical

weight loss clinic in Conshohocken, Pennsylvania. On September 1, 2010,

P.M. reported to police that during an appointment that day, Oren applied a

massage machine to her genital area and vaginally penetrated her with his

fingers.4    She called a friend afterward who encouraged her to call the

police.5 Police opened an investigation but did not interview or arrest Oren.

        On November 10, 2010, K.C. told police that Oren digitally penetrated

her and pressed her hand against his crotch.6         A few weeks later, T.H.

complained to police that Oren rested his hand on her pubic area, had her

press her hand against his crotch, massaged her genital area with the

machine, and penetrated her with his finger.7 Both K.C. and T.H. called the

police on the same day they visited Oren’s office.8

____________________________________________


4
    N.T., 9/11/12, at 103-05.
5
    Id. at 105, 109-11.
6
    Id. at 57-59.
7
    Id. at 242-45, 254-55.
8
    Id. at 90, 254-55.




                                           -2-
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        The fourth and fifth victims, B.R. and J.A., never came forward to

police with their complaints; instead, police contacted them during their

investigation.9 B.R. testified that Oren applied the massager to her vaginal

area over her underwear.10          B.R. had four more appointments with Oren

after the visit in which he applied the massager to her vaginal area.11 J.A.

testified that in August 2009, Oren put his hand up her dress and touched

the top of her legs close to her genitals and then in October 2009 he digitally

penetrated her while his penis was exposed.12 J.A. had appointments with

Oren every two weeks between the first incident in August 2009 and the

second incident in October 2009.13

        During his opening statement, his cross-examination of the victims,

and his closing argument, trial counsel contended that the victims failed to

make prompt complaints14 and emphasized that B.R. and J.A. continued to

attend appointments after their respective incidents.15 Trial counsel did not,

____________________________________________


9
    Id. at 222-23; N.T., 9/12/12, at 49-50.
10
     N.T., 9/11/12, at 210-17.
11
     Id. at 221.
12
     N.T., 9/12/12, at 31-45.
13
     Id. at 56-57.
14
     N.T., 9/11/12, at 51; N.T., 9/13/12, at 14-15, 19, 22, 25.
15
     N.T., 9/13/12, at 21-22, 24-25.



                                           -3-
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however, request a jury instruction concerning the victims’ failure to make

prompt complaints.

        During trial, P.M. and T.H. admitted making inaccurate statements in

civil actions that they filed against Oren before his criminal trial.     P.M.

admitted that contrary to her civil complaint, she was not “wrestling” with

Oren during her encounter and did not suffer physical harm.16 T.H. admitted

that contrary to her civil complaint, Oren did not kiss her vaginal area.17

During closing argument, trial counsel asked the jury to reject T.H.’s and

P.M.’s testimony on the basis of these inconsistencies.18

        There was no physical evidence corroborating any of the victim’s

allegations.

        As stated above, Oren did not file a direct appeal after his sentence,

but six months after sentencing, through new counsel, he filed a PCRA

petition contending that trial counsel provided ineffective assistance by

failing to: (1) call character witnesses on his behalf, (2) request a jury

instruction concerning the victims’ failure to make prompt complaints about

Oren’s assaults, or (3) request a jury instruction concerning P.M.’s and T.H.’s



____________________________________________


16
     N.T. 9/11/12, at 157-65.
17
     N.T., 9/12/12, at 9-14.
18
     N.T., 9/13/12, at 20, 23.



                                           -4-
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prior inconsistent statements in their civil complaints.19      In support of the

character witness argument, Oren submitted affidavits of nine individuals,

including his daughter, stating that Oren enjoyed an excellent reputation in

the community for peacefulness.

       On February 26, 2014, the PCRA court convened an evidentiary

hearing on Oren’s petition. The Commonwealth introduced the testimony of

both defense attorneys.20         Three character witnesses testified on Oren’s

behalf, and Oren himself testified. On July 1, 2014, the PCRA court entered

an order dismissing Oren’s petition.             The PCRA court explained in its

Pa.R.A.P. 1925 opinion that trial counsel provided reasonable bases for

electing not to present character testimony or request jury instructions

relating to prompt complaints or prior inconsistent statements.

       Oren presents three issues in this appeal:

              Did the PCRA court err in denying relief on the claim
              that trial counsel was ineffective for failing to present
              good character evidence by (1) failing to consider
              that trial counsel had an independent duty to
              investigate such evidence and shifting this duty from
              counsel to appellant and (2) finding lack of prejudice
              from evidence that by itself can warrant an acquittal?


____________________________________________


19
   Although Oren raised three additional claims of ineffective assistance in
his PCRA petition, he does not pursue them in this appeal. Therefore, we
will not discuss these issues.
20
   Because we do not see any practical difference between the actions of
these attorneys, we will refer to them in the singular (“trial counsel”).



                                           -5-
J-S21021-15


               Did the PCRA court err in characterizing as
               ‘reasonable’ trial counsel’s strategy that he did not
               request an instruction regarding the failures of two
               complainants to make a prompt complaint because
               he did not want to highlight that some of the
               complainants did promptly complain, where the
               applicable instruction would not have done what
               counsel purportedly feared and counsel had
               highlighted the failures to promptly complain
               throughout the trial?

               Did the PCRA court err in manufacturing reasons for
               trial counsel’s failure to request an instruction on
               how the jury should consider the evidence of the
               prior inconsistent statements of the complainants
               where counsel himself did not offer such reasons?

Brief For Appellant, at 3.

       In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in     the   light    most   favorable    to    the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa.2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.         Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa.2009).        We defer to the PCRA court’s factual findings and

credibility determinations supported by the record, but we review its legal

conclusions de novo.           Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa.Super.2014) (en banc).

       Oren alleges ineffective assistance of trial counsel in each of his

arguments. “It is well-established that counsel is presumed effective, and [a

PCRA     petitioner]    bears    the   burden      of    proving   ineffectiveness.”

                                        -6-
J-S21021-15


Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa.2009). To prevail on

an ineffectiveness claim, the PCRA petitioner must plead and prove by a

preponderance of the evidence that the underlying legal claim has arguable

merit; counsel had no reasonable basis for acting or failing to act; and the

petitioner     suffered   resulting    prejudice.       Commonwealth         v.

Baumhammers, 92 A.3d 708, 719 (Pa.2014). With regard to “reasonable

basis,” we will conclude that counsel’s chosen strategy lacked a reasonable

basis only if the petitioner proves that “an alternative not chosen offered a

potential for success substantially greater than the course actually pursued.”

Commonwealth v. Davido, 106 A.3d 611, 621 (Pa.2014). The petitioner

must prove all three factors or his claim fails. Baumhammers, 92 A.3d at

719.

       We first discuss Oren’s claim that trial counsel was ineffective for

failing to present character witnesses on his behalf.          When claiming

ineffectiveness for the failure to call a potential witness, the petitioner

satisfies    the   arguable   merit   and   prejudice   requirements   of   the

ineffectiveness test by establishing that: (1) the witness existed; (2) the

witness was available to testify for the defense; (3) counsel knew of, 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. Johnson, 966 A.2d 523, 536 (Pa.2009). In addition,


                                      -7-
J-S21021-15


the petitioner must prove that the failure to call a witness was unreasonable,

for the decision not to call a witness “usually involves matters of trial

strategy.” Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa.1996).

         During the PCRA hearing, PCRA counsel asked trial counsel whether he

considered “putting on character witnesses for the relevant trait of

peacefulness and nonviolence.”21 Trial counsel answered:

               We had a number of discussions with Dr. Oren. First
               of all, he offered no character witnesses, none. He
               couldn’t come up with any. We talked about it. It
               was a concern of mine that any opening the door to
               the jury hearing evidence that there was a prior
               conviction for a Racketeer Influenced Corrupt
               Organization offense was — I felt that that would
               have been strategically disastrous, so that’s why we
               didn’t spend a lot of time trying to come up with
               character evidence, plus he never offered anyone. I
               remember having specific discussions, could you get
               anyone and he couldn’t, before we even took it to
               the next step of do we want to use this testimony.

               We contacted — in terms of his conduct and the
               actions in his practice, we contacted quite a number
               of other patients of his and some of them had some
               very troubling and unkind things to say about Dr.
               Oren and reported conduct which was very
               consistent with the conduct that was the subject of
               this trial. My concern was that they were going to
               start stepping forward so we couldn’t find any of his
               former patients to come forward and say anything
               that would have helped us at all in our defense.22


____________________________________________


21
     N.T., 2/26/14, at 30.
22
     Id. at 30-31.




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PCRA counsel stated: “I wasn’t asking about former patients as character

witnesses.        I was talking about character witnesses.”23       Trial counsel

responded: “I understand. Well, where do I go for character witnesses? He

offered none.”24

           Moments later, PCRA counsel asked: “[D]id you ask [Oren] for the

names of potential character witnesses from his family or his friends?”25

Trial counsel answered: “I did.”26         PCRA counsel continued: “And it’s your

testimony that he was unable to provide you with any names?”27              Trial

counsel answered: “I don’t recall him coming up with any names, sir.”28

           Oren testified:

                 [Trial counsel asked] ‘do I have people who can talk
                 about me,’ and I said, ‘Of course, there is plenty of
                 them; there are a lot of them. I could say all my
                 family, relatives.’ We were talking about even people
                 coming from Israel to talk about me. Everybody
                 wants to talk about me. I had patients who wanted
                 to talk to me and I have colleagues who were willing


____________________________________________


23
     Id. at 31.
24
     Id.; see also id. at 61 (“he didn’t offer any”).
25
     Id. at 33.
26
     Id.
27
     Id.
28
     Id.




                                           -9-
J-S21021-15


              to talk to me and I have friends talk to me and I said
              they would all be ready to talk.29

Crediting trial counsel’s testimony and rejecting Oren’s testimony, the PCRA

court concluded that trial counsel neither knew of, nor should have known

of, the existence of any character witnesses.

        The PCRA court’s decision to credit trial counsel’s testimony and reject

Oren’s testimony is a credibility determination to which we must defer.

Henkel, 90 A.3d at 20. Accordingly, we accept as true that Oren failed to

furnish names of any potential character witnesses; trial counsel attempted

without success to find character witnesses at Oren’s weight loss clinic;

multiple patients voiced negative opinions about Oren to trial counsel; some

patients even reported conduct to trial counsel that was consistent with the

criminal conduct alleged in his criminal informations; and trial counsel

became concerned that these patients might contact police and strengthen

the Commonwealth’s case against Oren.              Based on these facts, we agree

with the PCRA court’s conclusion that trial counsel neither knew nor should

have known of any potential character witness, the third element of

Johnson’s five-part test.

        Oren insists that even if he failed to provide names of potential

character witnesses, trial counsel had the duty to undertake his own

____________________________________________


29
     Id. at 90.




                                          - 10 -
J-S21021-15


“independent investigation” to find character witnesses willing to testify on

Oren’s behalf. Brief For Appellant, p. 18. Trial counsel’s failure to conduct

an independent inquiry was unreasonable, Oren asserts, because “it is

ridiculous to think that a medical doctor living in Penn Valley with a social

circle involving fellow synagogue members and tennis club patrons could not

produce a few names of character witnesses.” Oren’s Supplemental Brief In

Support Of PCRA Petition, p. 5.

      The record demonstrates that trial counsel did conduct an independent

investigation for character witnesses. Trial counsel asked Oren for names of

potential witnesses, but Oren provided none.     Trial counsel also contacted

many of Oren’s patients, who either gave negative reviews about Oren or

reported conduct consistent with the accusations of the five complainants.

Under these circumstances, it was reasonable for trial counsel to conclude

that further searching for character witnesses not only was pointless but

could actually damage Oren’s defense by provoking more individuals to

contact the police and augment the number of charges and complainants

against him. Put differently, additional investigation for character witnesses

did not “offer[] a potential for success substantially greater than the course

actually pursued.” Davido, 106 A.3d at 621.

      In sum, the trial court properly rejected Oren’s claim that trial counsel

was ineffective for failing to locate character witnesses, because counsel

neither knew nor should have known about available character witnesses,


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and because he reasonably decided not to expand the investigation for

character witnesses.

        In his second argument, Oren contends that trial counsel was

ineffective for failing to request a jury instruction concerning the victims’

failure to make prompt complaints to the police.        The following facts are

relevant.     Trial counsel noted in his opening statement that two of the

victims failed to make a prompt complaint.30        While cross-examining the

victims, counsel highlighted that (1) K.C. did not call police until several

hours after the alleged incident;31 (2) P.M. did not call the police when she

left Oren’s office;32 (3) B.R. had no intention of calling the police; 33 (4) T.H.

did not call the police after leaving Oren’s office but went to work; 34 and (5)

J.A. never called the police or told anyone what allegedly happened to her.35

During closing argument, trial counsel repeatedly emphasized that K.C.,

T.H., B.R. and J.A. failed to make prompt complaints and thus lacked



____________________________________________


30
     N.T., 9/11/12, p. 51.
31
     Id. at 97.
32
     Id. at 154.
33
     Id. at 228.
34
     N.T., 9/12/12, at 8.
35
     Id. at 53, 58.



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credibility.36   Despite these attacks, trial counsel did not request that the

trial court instruct the jury on the victims’ failure to make prompt

complaints. The trial court did not give this instruction, and trial counsel did

not object to its omission.

        During the PCRA hearing, trial counsel explained his strategy as

follows:

              I believe that I tried to focus on — there were five
              complainants and they had to be approached
              differently, again, because some had made prompt
              complaints and others had not. Some had filed civil
              actions and others had not. So what I tried to do, I
              thought, was on each one find some manner in
              which I could question their credibility … Of course,
              the problem was to show any other motive, but for
              them reporting as happening, what, in fact, had
              happened. It was difficult to show a motive. We
              couldn’t connect the five of them together in any
              way other than the fact that they were all patients of
              Dr. Oren.37

When asked why he did not request a jury instruction concerning the

importance of prompt complaints, trial counsel testified:

              Having looked at that charge, I can say that I think
              that it was a double-edged sword in that it would
              highlight the fact that two of — the charge itself has
              language in it that adds credence to prompt
              complaint and two of them made what were, I felt,
              very prompt complaints. One of them went directly
              from the office to the police department and the
____________________________________________


36
     N.T., 9/13/12, pp. 14-15, 18-19, 22, 25.
37
     N.T., 2/26/14, at 8.




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                 other gal got on a train — I think she lived in
                 Philadelphia — and called on her cellphone as soon
                 as she got off the train.38

PCRA counsel asked trial counsel why he argued the prompt complaint issue

to the jury but failed to ask for a prompt complaint instruction. Trial counsel

answered:

                 [M]y making an argument to the jury is not the
                 same as a jury charge. And to hear it read in the
                 way I have reviewed it in the suggested standard
                 criminal jury instructions highlights the fact that
                 prompt complaint is to be considered by the jury as,
                 in essence, supporting the substance of the
                 complaint made by the complainant.39

        The statute governing the subject of prompt complaints, 18 Pa.C.S. §

3105, provides:

                 Prompt reporting to public authority is not required
                 in a prosecution under this chapter: Provided,
                 however, that nothing in this section shall be
                 construed to prohibit a defendant from introducing
                 evidence of the complainant’s failure to promptly
                 report the crime if such evidence would be
                 admissible pursuant to the rules of evidence.

Our Supreme Court has observed:

                 It is well established in this Commonwealth that the
                 lack of a prompt complaint is a factor to be
                 considered by a juror in cases involving sexual
                 offenses. Unquestionably, a prompt complaint is a
                 factor which must be assessed with all of the other
                 pertinent evidence bearing upon the question of the
____________________________________________


38
     Id. at 9.
39
     Id. at 17.



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            credibility of the complaining witness. In such cases
            the question of the sincerity of the complaint is
            raised if it is established that the delay under all of
            the factors present was either unreasonable or
            unexplained. Therefore, the inference of insincerity
            is only justified where the facts of the case fail to
            disclose a reasonable explanation for the challenged
            time lapse prior to the complaint.

            The lack of a prompt complaint by a victim of a
            crime, although not dispositive of the merits of the
            case, may justifiably produce a doubt as to whether
            the offense indeed occurred, or whether it was a
            recent fabrication by the complaining witness. …
            Whatever the scenario, the victim’s motive in making
            a complaint following a considerable period of silence
            is relevant as affecting the witness’ veracity.

Commonwealth v. Lane, 555 A.2d 1246, 1250-51 (Pa.1989) (citations

omitted) (emphasis added).

      We agree with the PCRA court that trial counsel had a reasonable basis

for his actions.   During opening and closing arguments, and during cross-

examination, trial counsel could choose his own language in which to convey

the failure-to-make-prompt-complaint theme to the jury.         On the other

hand, trial counsel could not control the language that the court used in its

jury instructions – and he had good reasons to believe that the language of

a prompt complaint instruction might do more harm than good for his client.

A prompt complaint instruction might have bolstered the credibility of the

three victims (P.M., K.C. and T.H.) who actually made prompt complaints to




                                    - 15 -
J-S21021-15


the police. As trial counsel testified, “the charge itself has language in it that

adds credence to [victims who make] prompt complaint[s].” 40 Moreover, a

prompt complaint instruction might even have bolstered the credibility of the

two victims (B.R. and J.A.) who delayed in reporting Oren’s conduct.            A

prompt complaint instruction does not compel the jury to conclude a late-

complaining witness lacks credibility; it merely directs the jury to assess

whether the victim had a reasonable motive for delaying her complaint.

Lane, 555 A.2d at 1250-51.             Here, both B.R. and J.A. had reasonable

motives for delaying their complaints. B.R. was not very troubled by Oren’s

conduct: “Well, it takes a lot to offend me … It wasn’t a huge concern to

me.”41 J.A. was dealing with illnesses in her family and was afraid that her

husband would physically assault Oren: “I didn’t want … to see my husband

end up in jail.”42 Thus, trial counsel reasonably concluded that the prompt

complaint instruction’s focus on the victim’s motive would influence the jury

to find B.R. and J.A. credible.

        Oren’s thesis boils down to two points: (1) a prompt complaint jury

instruction is equivalent to cross-examination or argument attacking the

victim’s delay in reporting a sexual assault; ergo, (2) it was unreasonable for

____________________________________________


40
     N.T., 2/26/14, at 9.
41
     N.T., 9/11/12, at 222.
42
     N.T., 9/12/12, at 48.



                                          - 16 -
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trial counsel to cross-examine the victims and make argument about the

absence of prompt complaint yet fail to ask for a prompt complaint

instruction.     For the foregoing reasons, however, trial counsel reasonably

concluded that a prompt complaint instruction could hurt Oren’s defense in

ways      that   cross-examination      or     argument   concerning   the   victims’

promptness could not.          Oren is not entitled to relief on this claim of

ineffective assistance.

        In his third and final argument, Oren asserts that trial counsel was

ineffective for failing to request a jury instruction concerning P.M.’s and

T.H.’s prior inconsistent statements in their civil complaints against Oren.

        For two reasons, the absence of a jury instruction with the explicit

term “prior inconsistent statement” did not cause Oren any prejudice. First,

the instructions actually given by the trial court were an adequate substitute

for a prior inconsistent statement instruction.           The court instructed that

“where there is a conflict in the testimony, the jury has the duty of deciding

which testimony to believe,” and that “if you cannot reconcile conflict[s] in

the testimony, it is up to you to decide which testimony, if any, to believe

and which to reject as untrue or inaccurate.”43 The court also instructed that

credibility “may be the most important question with which you will be


____________________________________________


43
     N.T., 9/13/12, at 64, 65.




                                          - 17 -
J-S21021-15


concerned during the course of your deliberations,” and that in the course of

determining credibility, “you will likewise consider the interest which the

witness has in the outcome of the litigation, if any, and whether or not that

has tended, either consciously or subconsciously, to color the testimony of

the witness.”44 Construed together, these instructions conveyed that P.M.’s

and T.H.’s civil suits against Oren might affect the credibility of their

testimony in Oren’s criminal trial; that the jury should weigh any

inconsistencies between these witnesses’ trial testimony and their civil

complaints; and that it should decide which version to believe and which to

reject as untrue or inaccurate.                While a prior inconsistent statement

instruction might have conveyed these concepts more cogently, we consider

these instructions to be a satisfactory alternative.

         Second, the inclusion of a prior inconsistent statement instruction

would not have changed the outcome of trial. The PCRA court thoroughly

explained in its opinion that the inconsistencies that trial counsel highlighted

during cross-examination and closing argument were “relatively minor”,45 so

a prior inconsistent statement instruction would not have changed the

verdict. The PCRA court reasoned:


____________________________________________


44
     Id. at 61, 62.
45
     Pa.R.A.P. 1925 Opinion, at 16.




                                          - 18 -
J-S21021-15


          Trial counsel cross-examined the woman as to the
          statement in her civil complaint that she ‘wrestled to
          sit up and extricate herself but was unable to do so’
          and asserted that the statement was not consistent,
          asking the witness if at any point in her testimony or
          her statement to the police she had said she was
          ‘wrestling to get up.’ The witness answered, ‘No, not
          wrestling. He was holding my legs, trying to get
          them open, but I wasn’t wrestling.’ (She had testified
          under the prosecutor’s direct examination, ‘I was – I
          kept again, clinching up. You know, it felt like he was
          trying to put it [the electric massager] between my
          legs and I was keeping my legs very tight.’ And, ‘he
          continued with the massager. He was trying to —
          you know, I felt like he was trying to put it between
          my legs. And I was just keeping my legs shut tight.’)
          Of the term ‘wrestling,’ trial counsel then asked the
          witness, ‘So that word is incorrect that you use in
          your civil complaint?’ and she replied, ‘Yes. I
          suppose it is.’

          Defense counsel also cross-examined the witness
          about ‘physical harm’ or ‘injury.’ He brought out that
          the police had asked her if she ‘suffer[ed] any
          injuries due to this inappropriate touching and she
          agreed she had answered no. He got her to affirm
          she had suffered no physical injuries. He then read
          from the civil complaint the allegation that ‘as a
          direct and proximate cause of defendant Oren’s acts
          and admissions [sic], the plaintiff has suffered and
          will continue to suffer physical and emotional harm
          and loss of self esteem.’ The witness said,
          ‘Emotional, yes. Self esteem, yes.’           Counsel
          persisted, ‘But there are three things I read in that
          sentence. One of them is physical harm. So which is
          it? An hour after this event, you told the police you
          had no physical injuries … And the complaints file[d]
          a month later in which you seek money damages,
          you say that you suffered physical harm. Which one
          is it? The witness responded, ‘It was not physical
          harm.’ Counsel then asked, ‘So that’s wrong? -
          Paragraph 50 is wrong?’ … The witness said, ‘Yes. I
          mean, that’s — but that’s the — I don’t know. That’s


                                  - 19 -
J-S21021-15


          what the lawyers drafted up. I didn’t — I mean,
          that’s not the statement I gave to the police.’

          Thus, under defense counsel’s cross-examination,
          the witness conceded at the criminal trial that Dr.
          Oren’s insertion of his fingers into her vagina did not
          ‘physically injure’ her and that the allegation to that
          effect in the civil complaint drafted by her lawyers
          was inaccurate. But this ‘inconsistency,’ upon which
          PCRA counsel seizes to label trial counsel ineffective
          for not requesting the Court to instruct the jury on
          its significance, turns, in the eyes of the law, on a
          highly technical distinction between ‘physical harm’
          sufficient to warrant damages in a civil suit and
          ‘physical injury’ as a typical juror, or a lay witness,
          might understand it as meaning lasting or visible
          damage to a part of one’s body, cf. Crimes Code, 18
          Pa.C.S. § 2301 (defining ‘bodily injury’ for purposes
          of the article of the Crimes Code pertaining to
          offenses      involving danger to the person as
          ‘[i]mpairment of physical condition or substantial
          pain’), which no one asserted Dr. Oren’s sexual
          assault on the woman created. In fact, however, Dr.
          Oren’s main offense against the woman, ‘aggravated
          indecent assault,’ 18 Pa.C.S. § 3125, appears, along
          with other physically assaultive offenses, in Part II,
          Article B of the Crimes Code, entitled ‘Offenses
          Involving Danger to the Person,’ in Chapter 31,
          ‘Sexual Offenses.’ Section 3125 provides that, ‘[A]
          person who engages in penetration, however slight,
          of the genitals or anus of a complainant with a part
          of the person’s body for any purpose other than
          good[-]faith medical, hygienic or law enforcement
          procedures commits aggravated indecent assault if:
          (1) the person does so without the complainants
          consent …’ 18 Pa.C.S. § 3125(a)(1). The common
          understanding of anyone, whether in the civil or
          criminal context, and the intention of the Crimes
          Code as well, is that inserting one’s fingers into a
          woman’s vagina without her consent is a ‘physical
          assault,’ the extent of any resulting ‘physical
          injury’— aside from the expected emotional and
          psychological trauma that medical science teaches is
          hard      to    separate     from     the    physical—

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          notwithstanding. The woman’s testimony understood
          in this common-sense fashion was not inconsistent
          with the pleading of ‘physical injury’ made in her civil
          complaint, expressed in the words of her civil lawyer
          and signed by her with no legal training in the legal
          meaning of the term. For Defendant’s trial counsel to
          have insisted on a jury instruction from the Court on
          ‘prior inconsistent statements’ would only have
          emphasized/highlighted how nothing said in the civil
          complaint drafted by her lawyer in the civil case was
          more than minimally inconsistent with her trial
          testimony …

          A ‘prior inconsistent statement’ of the second woman
          upon which PCRA counsel built his argument of trial
          counsel’s ineffectiveness also was arguably not that
          inconsistent with her trial testimony, and was equally
          or even more damaging, if believed. Trial counsel
          cross-examined the woman as to her statement in
          her civil complaint that, ‘Also, without the consent of
          the plaintiff, the defendant put his head down to her
          vaginal area and on two occasions kissed the
          plaintiff.’ Trial counsel successfully got the witness to
          admit that this statement was not ‘consistent’ with
          her statements to the police and at trial … [and]
          procur[ed] the witness’s admission that Dr. Oren had
          not put his head down to her vaginal area. However,
          in the context of the entire trial, the ‘inconsistency’
          counsel was able to manufacture through skillful
          cross-examination was not terribly dramatic. The
          witness admitted under trial counsel’s cross-
          examination that she had not read the civil complaint
          as well as she should have. The day before trial
          counsel’s cross-examination, however, the witness
          had testified on direct examination that a couple of
          seconds before inserting his fingers into her vagina,
          while she was lying on the exam table, Dr. Oren
          kissed the back of her neck. On redirect examination
          after     trial    counsel’s   cross-examination,     the
          prosecutor got the witness to read from her
          statement to police in which she had said that after
          using the massager on her private region, Dr. Oren
          bent down and kissed her neck. The prosecutor also
          elicited the witness’s testimony that she did not write

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J-S21021-15


          the civil complaint and had not studied law or how to
          write legal documents.

          The gist of this inconsistency in the witness’s
          testimony with her ‘prior inconsistent statements’
          thus boiled down to the admitted inaccuracy of the
          statement in the civil complaint that Dr. Oren had
          bent his head down to her vaginal area. In addition,
          Defendant’s       PCRA     petition    stresses    the
          inconsistency, brought out by trial counsel’s cross-
          examination of the witness, between the statement
          in her civil complaint that she reported the assault to
          the police immediately upon leaving the doctor’s
          office and her trial testimony, in which she indicated
          that she first attended her previously scheduled shift
          at work, because it was too late to call out, then,
          after consulting with her sister by phone from work,
          reported the assault to police immediately after
          leaving the workplace.

          Counsel argued to the jury that the witness’s
          statements were inconsistent, and cross-examined
          her effectively to make it appear so. But for trial
          counsel to have insisted that the Court, in a neutral
          fashion divorced from argumentative conclusions,
          deliver Pennsylvania Suggested Standard Jury
          Instruction 4.08A on ‘prior inconsistent statements’
          would have directed the jury to focus squarely on
          questions like, Was there really an inconsistency of
          any magnitude?, and, How significant is the
          inconsistency, in the greater context of all the
          evidence, in judging the witness’s credibility as to
          the facts she was consistent about all along,
          including all those necessary to make out the
          essential elements of the crime? …

          Trial counsel’s asking for, and the Court’s delivering,
          a jury instruction on prior inconsistent statements so
          the jury could ponder first whether the women had
          made prior inconsistent statements of any moment
          and second the importance of any such inconsistency
          in assessing their credibility would have had no
          reasonably likely positive impact on the jury’s
          determination whether Dr. Oren had committed

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J-S21021-15


              aggravated indecent assault on the women. Counsel
              did     not     render    constitutionally    deficient
              representation in not asking for a jury instruction on
              prior inconsistent statements.46

We commend the PCRA court’s excellent analysis and conclude that it acted

within its discretion by declining relief on this issue.

        We conclude that the trial court properly denied PCRA relief on all

issues that Oren has raised in this appeal.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2015




____________________________________________


46
     Pa.R.A.P. 1925 Opinion, at 17-19, 20-22, 23 (citations omitted).



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