J-S06006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL T. DEGILIO                         :
                                               :
                       Appellant               :   No. 1314 EDA 2019

            Appeal from the PCRA Order Entered February 27, 2019
      In the Court of Common Pleas of Carbon County Criminal Division at
                        No(s): CP-13-CR-0000232-2010


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 31, 2020

        Michael T. Degilio appeals from the order, entered in the Court of

Common Pleas of Carbon County, dismissing his petition filed pursuant to the

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

review, we affirm.

        We have previously set forth the underlying facts of this case as follows:

        On February 24, 2009, [Degilio] sexually assaulted a patient[1]
        that he was treating for severe depression and anxiety. The
        assault occurred during the patient’s second appointment with
        [Degilio]. On the previous occasion, [Degilio] asked the victim
        sexually suggestive questions. Although she was perturbed by
        [Degilio]’s behavior, the victim elected to continue her treatment
        with [Degilio].

        During the second session, [Degilio] directed the victim to sit
        beside him on the couch in his therapy room. He kissed the victim,
        both on the lips, and after pulling down her shirt and bra, upon
        her right breast. [Degilio] then stood facing the victim as she
____________________________________________


1   Degilio was a licensed psychologist with a doctorate in clinical psychology.
J-S06006-20


      remained seated. [Degilio] lowered his pants, took the victim’s
      right hand, and placed it on his penis. He then drew her head
      towards his penis, and directed her to perform oral sex. Within
      an hour of the assault, the victim informed her friend of the
      incident, and subsequently reported it to the police.

      In addition to setting forth the foregoing facts, the victim testified
      during a jury trial that a few days before her ordeal with [Degilio],
      she received a prescription for Klonopin in connection with her
      voluntary admission to the Behavioral Health Unit (“BHU”) of
      Gnaden Huetten Memorial Hospital. She stated that she informed
      [Degilio] that the medication made her feel confused and “zoned
      out.”

      The Commonwealth also proffered testimony from Dr. Ilan
      Levison, a board-certified psychiatrist. He testified that the
      victim’s daily dosage of eight milligrams of Klonopin was excessive
      and would have caused her to have symptoms of extreme
      confusion, delirium, fatigue, and gait impairment. In addition, he
      explained that, when people suffering from depression take a high
      dosage of Klonopin, they are extremely vulnerable and susceptible
      to manipulation by others.

Commonwealth v. Degilio, 1422 EDA 2015, at 1-2 (Pa. Super. filed June,

9, 2016) (unpublished memorandum) (citations to record omitted).

      On May 15, 2014, a jury convicted Degilio of involuntary deviant sexual

assault—forcible compulsion, indecent assault—forcible compulsion, and

indecent exposure. On November 17, 2014, the court sentenced Degilio to an

aggregate term of incarceration of four to eight years, followed by two years

of probation.    Post-sentence motions were denied.         This Court affirmed

Degilio’s judgment of sentence, see id., and our Supreme Court denied

allowance of appeal. See Commonwealth v. Degilio, 160 A.3d 788 (Pa.

2016) (Table).

      On August 3, 2017, Degilio filed a counseled PCRA petition in which he

alleged various claims of trial counsel’s ineffectiveness. Following a hearing,

                                      -2-
J-S06006-20



the PCRA court denied relief. This timely appeal follows, in which Degilio raises

the following claims for our review:2

        1. Was trial counsel ineffective for failing to investigate, interview,
        or present good character witness testimony on Degilio’s behalf,
        thus prejudicing his defense in such a manner that no reliable
        adjudication of guilt could have taken place?

        2. Was trial counsel ineffective for failing to investigate, interview,
        or preclude, by way of objection or motion in limine, alleged bad
        character evidence against Degilio provided by Brianna Edgar and
        Candy McMurray?

        3. Was trial counsel ineffective for failing to object to, preclude
        by motion in limine, or limit prejudice by way of cautionary
        instruction, the inadmissible and prejudicial prior bad act evidence
        elicited by the Commonwealth from Chief Kenneth Barnes?

        4. Was trial counsel ineffective for failing to utilize the testimony
        of Dr. Clifford H. Schilke and for refraining from attacking
        Commonwealth witnesses with complainant’s medical records and
        physician notes, thereby preventing Degilio from establishing that
        the complainant was neither mentally nor physically impaired or
        compromised from Klonopin at the time of the alleged sexual
        assault?

        Our standard of review is well-settled. In reviewing the denial of PCRA

relief, “this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.”

Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017). In

rendering our decision, we are bound by the credibility determinations of the

PCRA court that are supported by the record. Commonwealth v. Keaton,

82 A.3d 419, 425 (Pa. 2013).



____________________________________________


2   We have rephrased Degilio’s claims for purposes of clarity.

                                           -3-
J-S06006-20



      Degilio’s claims all assert the ineffectiveness of his trial counsel. Where

ineffective assistance of counsel is pled, counsel is presumed effective and the

petitioner bears the burden of proving ineffectiveness. Commonwealth v.

Cooper, 941 A.2d 655 (Pa. 2007). In order to obtain relief, a petitioner must

prove that counsel’s representation was deficient, and that he was prejudiced

thereby. Strickland v. Washington, 466 U.S. 668 (1984). Specifically, a

petitioner must plead and prove, by a preponderance of the evidence, that

      (1) the underlying claim has arguable merit; (2) counsel’s actions
      lacked any reasonable basis, and (3) counsel’s actions prejudiced
      the petitioner. Counsel’s actions will not be found to have lacked
      a reasonable basis unless the petitioner establishes that an
      alternative not chosen by counsel offered a potential for success
      substantially greater than the course actually pursued. Prejudice
      means that, absent counsel’s conduct, there is a reasonable
      probability the outcome of the proceedings would have been
      different.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citation

omitted).

      Degilio first argues that trial counsel was ineffective for failing to

investigate, interview, or present good character witnesses on his behalf at

trial. Degilio claims that counsel failed to advise him of his right to introduce

good character evidence, and Degilio only learned of that right in consulting

with appellate counsel. Brief of Appellant, at 16. Degilio asserts that, had he

been aware of his right to present character witnesses, he would have

presented the testimony of family members and friends to attest to his

reputation in the community as a peaceful, non-violent, and law-abiding

person. Id. at 17. Degilio is entitled to no relief on this claim.

                                      -4-
J-S06006-20



      As a general rule, evidence of a person’s character may not be admitted

to show that individual acted in conformity with that character on a particular

occasion. Pa.R.E. 404(a). However, Pennsylvania Rule of Evidence 404(a)(1)

provides an exception which allows a criminal defendant to offer evidence of

his or her character traits which are pertinent to the crimes charged and allows

the Commonwealth to rebut the same. Id. at 404(a)(2)(A).

      Pennsylvania Rule of Evidence 405 governs methods of proving

character and provides, in relevant part, as follows:

      (a) By Reputation. When evidence of a person’s character or
      character trait is admissible, it may be proved by testimony about
      the person’s reputation. Testimony about the witness’s opinion
      as to the character or character trait of the person is not
      admissible.

         (1) On cross-examination of the character witness, the court
         may allow an inquiry into relevant specific instances of the
         person’s conduct probative of the character trait in question.

         (2) In a criminal case, on cross-examination of a character
         witness, inquiry into allegations of other criminal conduct by
         the defendant, not resulting in conviction, is not permissible.

Id. at 405(a).

      This Court has previously explained the limited purpose for which

character evidence may be offered:

      It has long been the law in Pennsylvania that an individual on trial
      for an offense against the criminal law is permitted to introduce
      evidence of his good reputation in any respect which has “proper
      relation to the subject matter” of the charge at issue. Such
      evidence has been allowed on a theory that general reputation
      reflects the character of the individual and a defendant in a
      criminal case is permitted to prove his good character in order to
      negate his participation in the offense charged. The rationale for
      the admission of character testimony is that an accused may not

                                      -5-
J-S06006-20


      be able to produce any other evidence to exculpate himself from
      the charge he faces except his own oath and evidence of good
      character.

      It is clearly established that evidence of good character is to be
      regarded as evidence of substantive fact just as any other
      evidence tending to establish innocence and may be considered
      by the jury in connection with all of the evidence presented in the
      case on the general issue of guilt or innocence. Evidence of good
      character is substantive and positive evidence, not a mere make[-
      ]weight to be considered in a doubtful case, and, . . . is an
      independent factor which may of itself engender reasonable doubt
      or produce a conclusion of innocence. Evidence of good character
      offered by a defendant in a criminal prosecution must be limited
      to his general reputation for the particular trait or traits of
      character involved in the commission of the crime charged. The
      cross-examination of such witnesses by the Commonwealth must
      be limited to the same traits. Such evidence must relate to a
      period at or about the time the offense was committed, and must
      be established by testimony of witnesses as to the community
      opinion of the individual in question, not through specific acts or
      mere rumor.

Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa. Super. 2011), quoting

Commonwealth v. Luther, 463 A.2d 1073, 1077–78 (Pa. Super. 1983)

(citations omitted).

      Further, a defense counsel’s failure to call a particular witness to testify

does not constitute ineffectiveness per se. Commonwealth v. Cox, 983 A.2d

666, 693 (Pa. 2009). “In establishing whether defense counsel was ineffective

for failing to call witnesses, a defendant must prove the witnesses existed, the

witnesses were ready and willing to testify, and the absence of the witnesses’

testimony prejudiced petitioner and denied him a fair trial.” Id. at 693.

      Here, Degilio claims that, but for the ineffectiveness of trial counsel, he

would have sought to introduce evidence of his reputation as a peaceful, non-



                                      -6-
J-S06006-20



violent, and law-abiding person.3 At the PCRA hearing in this matter, Degilio

presented testimony from four individuals whom he identified as character

witnesses he would have called at trial. All of the individuals testified that

they were never asked to testify but they would have been available and done

so.     Accordingly, Degilio has satisfied the first two prongs of the

ineffectiveness test for failure to call witnesses. Cox, supra. Degilio cannot,

however, establish prejudice.

       Degilio first called Dr. Lori Lawson, his sister-in-law, at the PCRA

hearing. On direct examination, she stated that she would have testified to

Degilio’s reputation in the community as “law-abiding, peaceful and

nonviolent.”    N.T. PCRA Hearing, 4/11/18, at 126.    On cross-examination,

counsel for the Commonwealth inquired as to the identity of those with whom

she discusses Degilio. Doctor Lawson testified that she talks about him with

her sister, Degilio’s wife. Id. at 131.

       Next, Rogene Seidel testified that she had known Degilio for 26 years,

having met him when they were both obtaining their master’s degrees. Id.

at 133. She testified that, since that time, she would meet Degilio “a couple

times a year” for “dinner or, you know, hang out.” Id. On direct examination,

____________________________________________


3 Here, the crimes of which Degilio was accused involved the use of
psychological manipulation of a vulnerable individual with a recent history of
suicidal ideation, not physical force or violence. Where force or violence, per
se, are not used in the commission of an offense, it is questionable whether
peacefulness and non-violence are pertinent character traits to the offenses
charged. However, because of our disposition of this issue, we need not reach
that question today.

                                           -7-
J-S06006-20



Seidel stated that she would have testified as to Degilio’s reputation in the

community for being law-abiding, peaceful and nonviolent. Id. at 134. On

cross-examination, Seidel testified as follows:

      Q: And who . . . do you talk to about Mr. Degilio?

      A: His wife, other friends that we have in common.

      Q: His wife?

      A: Yes.

      Q: And who else?

      A: People that we worked with over the years.

      Q: And how would he come up in conversation?

      A: Recently or in the past?

      Q: Both.

      A: In the past, just the kind of work Mike was doing, the kind of
      work I was doing. We’re in the same business of psychology.
      People I’d run into, you know, did you see Mike lately? How’s he
      doing? . . .

      Q: So what specifically would you be talking [about] to these
      people that you worked with regards to him being nonviolent?

      A: Just I guess [my] opinion of Mike that I have of my friends
      that know him is that he’s pretty laid back, easy going, easy to
      talk to. When you needed somebody to talk to, he’s there for you.

Id. at 137-38.

      The Court examined Seidel as follows:

      [BY THE COURT]: [W]hat have people told you about his
      reputation? That’s what we’re talking, reputation.

      A: Yes.

      Q: We’re not talking about your personal knowledge. We’re
      talking about his reputation in the community. My question is,

                                     -8-
J-S06006-20


      what have people told you about his reputation with respect to
      [being law-abiding, peaceful and nonviolent]?

      A: That he is law-abiding—

      Q: Okay.

      A: —and he’s peaceful.

      Q: So when you talk to people, they say, oh, Mike is a law-abiding
      person?

      A: No, that he’s a decent person. He’s a good person, that he’s
      a helpful person, an honest person.

Id. at 139-40.

      Linda Lawson (“Linda”), another sister-in-law who resides in Florida,

testified that she had known Degilio since 1997.      Id. at 142.    On direct

examination, Linda testified to Degilio’s reputation in the community for being

law-abiding, peaceful and nonviolent. Id. at 145. On cross-examination, the

Commonwealth tested the basis for this opinion:

      Q: Now, you had said that you were extremely familiar with Mr.
      Degilio’s reputation in his community for being law-abiding,
      peaceful and nonviolent.

      A: Yes.

      Q: Okay. Who did you talk to about him? Who did you talk to
      about those traits with regards to Mr. Degilio?

                                     ...

      A: Okay. Nancy Meiser, Owen Kupp, Jill Anderson. That’s it.

      Q: All right. And who is Nancy Meiser?

      A: She’s a friend of the family.

      Q: A friend of the family. And where does she live?

      A: In Tamaqua.

      Q: And Owen Kupp?

                                     -9-
J-S06006-20


     A: In Tamqua, also.

     Q: And that is a family friend?

     A: He’s a family member.

                                       ...

     Q: And Jill Anderson?

     A: She’s a friend of mine in Florida.

     Q: And what did they say?

                                       ...

     A: That he was a peaceful, nonviolent, law-abiding citizen.

     Q: Well, I mean, how did they—in what context did they say that?
     Did they just, you know, say, hey, how’s Mike? He’s a peaceful,
     nonviolent, law-abiding person?

     A: No. They would just say, oh, he’s very mellow, very friendly,
     very kind, loving, you know.

     Q: That’s what would be talked about?

     A: Yes.

Id. at 150-51.

     Finally, Paula Lawson (“Paula”), another of Degilio’s sisters-in-law,

testified that she had known Degilio since 1997. Paula testified to Degilio’s

reputation in the community as a “law-abiding person” with a “good

reputation” who was “laid back and never violent.” Id. at 154. On cross-

examination, Paula stated that she had spoken about Degilio with “a guy that

worked with [her] at Lowe’s” and with her sister. Id. at 162.

     Based upon our review of the proposed testimony of Degilio’s four

character witnesses, we conclude that the evidence did not meet the

requirements necessary for the admission of character evidence.     Because

                                   - 10 -
J-S06006-20



Degilio has failed to show that his proposed witnesses would have given the

proper testimony, he cannot establish that trial counsel was ineffective for

failing to present their testimony at trial. Cox, supra.

      First, Dr. Lawson’s proposed testimony does not meet the threshold for

character evidence because it would not have provided insight into Degilio’s

reputation in the community. Although Dr. Lawson initially testified that she

was aware of Degilio’s reputation in the community for being peaceful, law-

abiding, and non-violent, on cross-examination it became apparent that she

only spoke about Degilio with her sister, Degilio’s wife. Our Supreme Court

has explained that “[c]haracter evidence is not the opinion of one person or

even a handful of persons, but must represent the consensus of the

community.” Commonwealth v. Keaton, 45 A.3d 1050, 1074 (Pa. 2012)

(citation omitted). The insight into Degilio’s character gained from speaking

about him with one individual does not equate to knowledge of his general

reputation within his community.     Accordingly, Dr. Lawson could not have

offered proper character testimony at Degilio’s trial.

      Similarly, Paula Lawson testified that she has spoken about Degilio to

“a guy that worked with [her] at Lowe’s” and with her sister.     N.T. PCRA

Hearing, 4/11/18, at 162. As with Dr. Lawson’s testimony, this evidence does

not represent “the consensus of the community,” Keaton, 45 A.3d at 1074,

and is, therefore, improper character evidence.

      Linda Lawson testified that her knowledge of Degilio’s character was

gleaned from speaking to three individuals, two of whom were family

                                     - 11 -
J-S06006-20



members and one of whom she described as “a friend of [hers] in Florida.”

N.T. PCRA Hearing, 4/11/18, at 151. The opinions of three individuals—one

of whom does not even reside in the same community as Degilio—does not a

“community reputation” make.        See Keaton, supra.        Moreover, Linda’s

proposed testimony failed to address the character traits proffered by Degilio

as relevant to the charges in question. When asked by the PCRA court to

clarify whether she ever discussed with the three individuals Degilio’s

reputation for being peaceful, law-abiding and nonviolent, Linda testified:

“No.   They would just say, oh, he’s very mellow, very friendly, very kind,

loving, you know.” N.T. PCRA Hearing, 4/11/18, at 151. Thus, as Linda’s

proposed testimony addressed neither Degilio’s reputation in the community,

nor the character traits he wished to place in issue, it is improper character

evidence.

       Finally, Rogene Seidel testified that she discussed Degilio with his wife

and “[p]eople that [she and Degilio] worked with over the years.” Id. at 137.

This testimony is, arguably, reflective of “the consensus of the community.”

Keaton, 45 A.3d at 1074.       However, Seidel’s testimony would have been

irrelevant in the context of the instant matter.      As noted above, Seidel’s

familiarity with Degilio was limited to his reputation as “a decent person. He’s

a good person, that he’s a helpful person, an honest person.”         N.T. PCRA

Hearing, 4/11/18, at 140. These qualities are not relevant to the character

traits Degilio sought to place in issue, i.e., those of peacefulness, nonviolence,

and law-abidingness.

                                     - 12 -
J-S06006-20



       In sum, Degilio has failed to establish that the testimony of any of his

would-be witnesses would have been admissible as character evidence under

Pa.R.E. 404(a) and 405(a). Therefore, we cannot find that the absence of this

testimony prejudiced Degilio as to require a new trial. Accordingly, Degilio

has failed to demonstrate that trial counsel was ineffective for failing to

investigate or call these witnesses at trial.4

       Degilio next claims that trial counsel was ineffective for failing to seek

the exclusion of inadmissible prior bad act evidence elicited by the

Commonwealth from Mohoning Township Police Chief Kenneth Barnes. Degilio

further asserts that counsel was ineffective for failing to seek a cautionary

instruction regarding statements made by Chief Barnes regarding alleged prior

sexual contact between Degilio and “multiple females.” Brief of Appellant, at

52.

       Some background is in order. Degilio’s defense in this matter was that

he never had sexual contact with the victim and that he was, in fact, engaging

in sexual relations with another woman at the time he allegedly assaulted the

victim. The victim, however, testified to the existence of a mole in Degilio’s

groin area. Photographs taken by the police pursuant to a warrant confirmed

the existence of the mole.          At trial, Chief Barnes testified regarding his

____________________________________________


4 Degilio’s second appellate claim challenges the validity of trial counsel’s
underlying rationale for not offering character evidence. Because we have
determined that Degilio was not prejudiced by the absence of his proposed
character witnesses, this claim is moot.



                                          - 13 -
J-S06006-20



interaction with Degilio during and after the execution of the search warrants,5

at which time Degilio agreed to make a statement. Chief Barnes testified that,

during that conversation, Degilio posited that the victim was aware of his

birthmark because someone had informed her of its existence. N.T. Trial,

5/12/14, at 186. Chief Barnes responded that it was “unlikely or improbable

that someone had done this.” Id. In response, Degilio informed Chief Barnes,

“I’ve had sex with other women. I’ll give you their names.” Id. at 187. Chief

Barnes’ testimony continued:

        [CHIEF BARNES]: I asked him if they were patients. He
        responded, “No.” I asked him if this was between 2006 when he
        was working for other agencies or from the time he opened up his
        office. He responded, “Yes.” I said, “Well, the answer you gave
        me was plural. You said women, not a woman. How many were
        there?” He said “About five.” And I said, “About five or five to
        ten? How many?” His response was, “Five is good.”

        Q: Did you inquire with regards to his fiancée?[6]

        A: I asked him if his—I asked him if Wendy, his fiancée, knew
        about his sexual encounters. And his response was, “No, she did
        not”—or “No,” frankly.

        Q: Did you ask him who these women were?

        A: Yes, I did.

        Q: How did he respond?

        A: It was people he worked with. There was a nurse at a hospital,
        a case worker at another place that he worked with, a secretary
        at a mental healthcare agency. I asked him, “Oh, where did these
        acts take place?” His first response was “In a car.” And I asked
____________________________________________


5Police also obtained a warrant to search and seize files and computers at
Degilio’s office.

6   Degilio’s then-fiancée is now his wife.

                                          - 14 -
J-S06006-20


      him if they ever took place in his office, and he answered “Yes.”
      And I asked him if any occurred in his home. That he stated
      “no[.]”

      Q: When you asked him to give you the names of these ladies,
      did he do that?

      A: No. He originally wanted to and then had a change of heart,
      change of mind that he didn’t want to, might have—things would
      become complicated. I asked him, I said, “Were any of them
      married?” And the answer was “Yes.”

      Q: And what did he specifically say why he did not want to
      disclose these names?

      A: “I’d rather not, it would cause complications.”

Id. at 187-88.

      Degilio argues that trial counsel “sat idle, while Chief Barnes depicted

[him] as a promiscuous adulterer who had previously engaged in multiple

clandestine sexual relationships with several females prior to meeting [the

victim.” Brief of Appellant, at 56. Degilio argues that this “character attack”

violated Pa.R.E. 403 and 404 and garnered the Commonwealth an “unfair

tactical advantage.”    Id. at 56-57.    He argues trial counsel allowed the

Commonwealth to “attack [his] character trait for chastity” and to “pervade

the jury’s exclusive function of determining witness credibility and [Degilio’s]

ultimate culpability.” Id. at 59. Degilio further argues that counsel’s failure

to object to Chief Barnes’ testimony “permitted the Commonwealth to

impermissibly bolster [the victim’s] credibility by engaging in a full frontal

attack on [Degilio’s] lack of virtue and promiscuity[.]” Id. at 60.

      At the PCRA hearing, trial counsel testified that he did not object to Chief

Barnes’ testimony because, by volunteering the fact that he had slept with

                                     - 15 -
J-S06006-20



other women, Degilio had “opened the door.” N.T. PCRA Hearing, 5/3/18, at

191. Counsel further stated: “Don’t get me wrong, it’s not something that I

wanted necessarily to come out, but he opened the door. But I didn’t view

those as prior bad acts because they’re not similar to what we’re on trial for.”

Id. at 192.

      The PCRA court addressed the issue as follows:

      This evidence was not presented by the Commonwealth to
      evidence any misconduct on [Degilio’s] part or to evidence any
      criminal propensity by [Degilio] to engage in wrongful conduct.
      To the contrary, the evidence, as presented, expressly included
      [Degilio’s] explanation that this was consensual sex and it never
      involved a patient.      As such, the evidence was clearly not
      introduced to establish that [Degilio’s] contact with [the victim]
      was in conformity with his behavior towards other women in the
      past. Nor is it a crime or necessarily wrong for a single man, even
      if engaged,10 to engage in consensual sexual relations with
      another woman such that this conduct should be considered as
      propensity or “prior bad act” evidence.
         10 At trial, [Degilio] testified that his relationship with his
         fiancée was an open one, under which he was free to engage
         in sexual relations with others, but his fiancée didn’t want
         to know about it.

      The evidence was relevant to showing at least one explanation
      given by [Degilio] as to how [the victim] would know of his
      birthmark and to assist the jury in judging [Degilio’s] credibility in
      the context of his denial that he and [the victim] ever engaged in
      sexual relations with one another, defense counsel having
      previously advised the jury in opening statements that [Degilio]
      would be testifying. This evidence also corroborated [the victim’s]
      later testimony that during her first meeting with [Degilio] in his
      office on February 20, 2009, he told her that although he was
      engaged, he enjoyed sexual relations with other women. We do
      not view this as character or propensity evidence barred by Rule
      404(b), but as a relevant statement [Degilio] made to the police
      as part of Chief Barnes’ criminal investigation of [the victim’s]
      accusations.


                                     - 16 -
J-S06006-20


      It also needs to be understood that at the time this evidence was
      presented, trial counsel knew his alibi witness, Ms. Beckett, as
      well as [Degilio] would be testifying to their sexual relations with
      one another on the date of the offense. For [Degilio] to object or
      request a cautionary instruction to evidence of the same type he
      intended to present would only lessen the credibility of the defense
      in the eyes of the jury. As part of trial strategy it made no sense
      to object, and with respect to the element of prejudice necessary
      to support a claim of ineffectiveness of counsel, we see none.

Trial Court Opinion, at 22-23 (citations to record omitted).

      We agree with the PCRA court that counsel was not ineffective for failing

to object to Chief Barnes’ testimony.    The sexual activity to which Degilio

referred in his interview with Chief Barnes occurred between consenting

adults. Such activity is neither a bad act, nor criminal in nature, such that

evidence thereof would be subject to the strictures of Rule 404(b). Our own

research has uncovered no precedent supporting this proposition, and Degilio

has directed our attention to none. Indeed, Degilio’s own alibi defense was

predicated on just the type of activity that he now seeks to characterize as

“bad acts,” i.e., he could not have assaulted the victim because, at the time

the assault was alleged to have occurred, he was engaged in sexual activity

with a woman who was not his then-fiancée.           That woman, Bernadette

Beckett, testified on Degilio’s behalf that she engaged in a sexual relationship

with him during a period of time in which they were both involved with other

people. Moreover, Degilio testified on direct examination that his relationship

with his then-fiancée was an open one, in which both parties were allowed to




                                     - 17 -
J-S06006-20



pursue outside relationships.7 It is simply disingenuous for Degilio to argue

that evidence of his promiscuity is admissible when it suits his purposes, but

not when presented by the Commonwealth for an otherwise relevant purpose.

Here, evidence regarding Degilio’s sexual relationships with other women was

relevant to the Commonwealth’s case in that it corroborated the victim’s

testimony that Degilio told her that he “cheated on [his fiancée] all the time

and that he loves women.” N.T. Trial, 5/12/14, at 56. In a “he said-she said”

case such as this, establishing the credibility of the victim is essential to the

Commonwealth’s prosecution.

        Moreover, trial counsel had a reasonable strategic basis for allowing the

testimony to come in. As noted above, the victim was able to identify a mole

near Degilio’s groin.     This knowledge of a distinguishing mark on Degilio’s

body—which was corroborated by police photographs—bolstered the victim’s

credibility by providing evidence that she had, in fact, had intimate contact

with Degilio.     The victim’s knowledge of this mark is particularly powerful

where Degilio’s defense was not that his contact with the victim was

consensual, but that there was no contact at all.       Testimony that multiple

other women had been in a position to observe Degilio’s anatomy provided
____________________________________________


7   Degilio testified as follows:

        We had an agreement that, if either of us met somebody who
        was—who fit, you know, what we wanted, we both understood,
        and we were fine with going the other way.

N.T. Trial, 5/14//14, at 48.


                                          - 18 -
J-S06006-20



the defense with one explanation for the victim’s knowledge. Specifically, the

jury could have inferred that another of Degilio’s paramours had informed the

victim of the presence of the mole. Strategically, it was entirely reasonable

for trial counsel to refrain from objecting to testimony that could effectively

explain away a key element of the Commonwealth’s case.                  Accordingly,

because there existed a reasonable basis for counsel’s failure to object,

counsel cannot be deemed ineffective.       Brown, supra.

        Next, Degilio claims that trial counsel was ineffective for failing to call

Dr. Clifford H. Schilke, the victim’s treating psychiatrist, to testify at trial in

order    to   refute   the   Commonwealth’s     evidence   that   the   victim   was

“substantially psychologically compromised by her use of [K]lonopin.” Brief

of Appellant, at 69. Degilio argues that the victim’s medical records indicate

that she was “tolerating [K]lonopin well and did not complain of any side

effects or any irregularities to either Dr. Schilke or the hospital personnel”

during her inpatient treatment.      Id. at 65.   Although Degilio presented an

expert who testified at trial that the victim’s use of Klonopin would not have

rendered her incapable of consent, that expert had never actually treated the

victim. Degilio claims that the testimony of Dr. Schilke—who had treated the

victim—would have been more persuasive in establishing that the victim was

not overprescribed Klonopin, which was a “critical issue with respect to the

Commonwealth being able to establish the elements of forcible compulsion.”

Id. at 68.




                                       - 19 -
J-S06006-20


        When raising a claim of ineffectiveness for the failure to call a
        potential witness, a petitioner satisfies the performance and
        prejudice requirements of the [ineffective assistance of counsel]
        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. Selenski, 228 A.3d 8 (Pa. Super. 2020) (citation

omitted).

        Here, Degilio failed to establish that Dr. Schilke was available or willing

to testify on his behalf at trial.       Degilio presented neither an affidavit nor

testimony from Dr. Schilke to that effect and is, therefore, unable to satisfy

two of the five requirements for demonstrating counsel’s ineffectiveness for

failure to call a witness.       See Cox, supra (petitioner must demonstrate

witness was available and willing to testify for defense).

        Moreover, trial counsel testified at Degilio’s PCRA hearing that, due to

the fact that Dr. Schilke was represented by counsel in the ongoing civil suit,8

he did not believe he could communicate with Dr. Schilke directly. Counsel

contacted Dr. Schilke’s civil attorney to inquire about the possibility of Dr.

Schilke testifying at Degilio’s trial. Doctor Schilke’s counsel informed Degilio’s

counsel that Dr. Schilke was “not going to be helpful” to Degilio’s case. N.T.

PCRA Hearing, 4/11/18, at 210. Indeed, counsel testified that Dr. Schilke’s

counsel reiterated this fact repeatedly, because trial counsel was “pushing him

because [trial counsel] understood [t]hat Mr. Degilio wanted Dr. Schilke, and
____________________________________________


8   The victim filed suit against Degilio and other parties, including Dr. Schilke.

                                          - 20 -
J-S06006-20



[he] understood why he wanted Dr. Schilke.” Id. at 184. Trial counsel further

testified that he did not subpoena Dr. Schilke’s testimony because he did not

want to “call a witness and put him on without any kind of preparation and

knowing what he’s going to say on the stand.” Id. at 210-11. Counsel stated:

      You want to provide the documents to the expert, have the expert
      review them. You want to be able to sit down with the expert, see
      if the expert then is going to be helpful, positive to your case, let
      the expert know what the Commonwealth’s side of things are, and
      then if the expert can provide to you what you're looking for, use
      that expert.

      And you want an expert that's going to be truthful to you. I mean,
      I’ve had experts before that I'm looking for one thing, they're not
      able to provide it. You look for another expert. You want an expert
      that’s going to be honest and frank with you, not someone that’s
      just going to give you what you want because you’re paying them
      a fee, and I felt that we found that in Dr. Fenichel.

Id. at 185-86.

      In light of those facts, it was entirely reasonable for trial counsel to opt

to retain another expert witness to testify on Degilio’s behalf. For this reason

also, Degilio is unable to establish trial counsel’s ineffectiveness.    Brown,

supra (to prove ineffectiveness, petitioner must demonstrate counsel’s action

lacked any reasonable basis).

      Finally, Degilio asserts that trial counsel was ineffective for failing to

utilize the victim’s medical records to impeach the testimony of the victim and

Commonwealth expert witness Dr. Ilan Levinson. Specifically, Degilio argues

that the medical records do not reflect any complaints by the victim regarding

her ability to tolerate Klonopin or any of the adverse effects she claims to have



                                     - 21 -
J-S06006-20



experienced. Rather, Degilio argues that records establish that the victim was

“steady on her feet, well oriented to time and place, and fully cognizant of her

surroundings and situation.” Brief of Appellant, at 66. Degilio argues that the

medical records would have demonstrated that the victim was not mentally or

physically impaired or compromised by the medication, thus countering a key

element of the Commonwealth’s case against him. This claim is meritless.

      The record demonstrates that, at trial, counsel vigorously cross-

examined both the victim and Dr. Levinson, making frequent reference to the

victim’s medical records and her use of Klonopin.      Counsel challenged the

victim’s claim that she had never previously been prescribed Klonopin. See

N.T. Trial, 5/12/14, at 103-04. Counsel elicited testimony from the victim

that, in the days immediately preceding the assault, she had successfully

engaged in the normal activities of daily living, including providing child care

for five children and driving, and never asked for an adjustment to her

Klonopin prescription. Id. at 114-15. Counsel thoroughly cross-examined

her regarding the assault and the fact that she informed people in the

behavioral care unit that she was not one hundred percent certain the assault

had happened. Id. at 140.

      Similarly, counsel cross-examined Dr. Levinson regarding the fact that

the victim’s Klonopin prescription remained consistent during the time

spanning her discharge from her first hospitalization, through the date the

assault occurred, and during and after her second hospitalization following the

assault. Counsel elicited testimony from Dr. Levinson that the victim’s medical

                                     - 22 -
J-S06006-20



records revealed a diagnosis for psychosis, which causes “perceptual

abnormalities which can include hallucinations and/or delusions,” N.T. Trial,

5/13/14, at 42.    Counsel also questioned him regarding a notation in her

records indicating possible confusion and hallucinations upon readmission to

the BHU two days after the incident in question. Id. at 45.

       At the PCRA hearing, trial counsel testified that he, along with his

associate, reviewed all of the victim’s medical records prior to trial. However,

counsel testified that he was judicious in his use of the records at trial, stating:

      [I]n all honesty, . . . [a] lot of those records, whether it’s Dr.
      Schilke or other of the treating physicians and nurses, they cut
      both ways. There’s positive parts and there’s negative parts.

                                        ...

      [A]t trial, I put in the hospital reports that I, in my opinion and in
      my strategy, I felt were the appropriate reports to put in because,
      as I said previously, there’s—a lot of those reports, you can pick
      things out that are positive for the defense, and then in those
      reports, there’s things that are negative for the defense. So I
      didn’t want to put in a whole slew of reports that can cut both
      ways as a lot of those could. So I tried to keep it as clean as I felt
      possible. That was my strategy. That’s the strategy I felt was
      appropriate, and that's the strategy and plan I took.

N.T. PCRA Hearing, 4/1/19, at 183, 194

      The Commonwealth questioned Attorney Waldron about his decision not

to use specific exhibits referenced in Degilio’s PCRA petition. He responded:

      The reason I did not put in records such as this, you can pick and
      choose in these records. You can look at what is put in the PCRA
      petition and say Exhibit J and it will say what’s listed in the PCRA,
      no confusion, no disorganized thinking, well oriented in time.

      Then you can look at Exhibit J or some of these other exhibits,
      each and every one, and then there's things that would then make

                                      - 23 -
J-S06006-20


      her, [the victim], look sympathetic, look like a victim, and I just
      felt—I didn't want the jury pouring over these documents and
      saying, well, this is positive. This is negative. This is that. She’s
      sympathetic here. She's not—I think—I wanted to keep it cleaner
      than just having them—you know, you can pick and choose.
      Hindsight is always 20/20, and there were positive things and
      negative things in mostly all these documents.

      So I thought it was prudent to take the course that I took and I
      put in some documents, I used cross examination and I felt I’m
      going to use cross examination than put in a whole boatload of
      documents. That was the course. That was my strategy. I wasn’t
      going to put in a lot of documents that had things that I think hurt
      me while at the same time may help me into evidence.

Id. at 196-97.

      Based upon the foregoing, we concur with the PCRA court’s conclusion

that counsel’s chosen course of action with respect to his use of the victim’s

medical records had a reasonable basis. Trial counsel did not want to provide

the jury with voluminous records that, while containing some information

helpful to the defense, could have also elicited sympathy for the victim. As a

result, counsel opted to rely heavily on vigorous cross-examination to cast

doubt on the victim’s credibility and her version of events. This strategy was

a reasonable one and, as such, Degilio cannot establish that trial counsel was

ineffective.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/31/20

                                     - 24 -
