Com. v. Melecio, J. ( 2020 )

J-S73034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIO ERIGUE MELECIO, :
:
Appellant : No. 1101 MDA 2019
Appeal from the PCRA Order Entered June 5, 2019
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002388-2016
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: FEBRUARY 3, 2020
Julio Erigue Melecio (“Melecio”) appeals from the Order denying his first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On September 14, 2017, following a jury trial, Melecio was found guilty
of one count of rape and two counts of involuntary deviate sexual intercourse.1
The trial court sentenced Melecio to an aggregate term of thirty to sixty years
in prison. This Court affirmed the judgment of sentence. See
Commonwealth v. Melecio, 200 A.3d 550 (Pa. Super. 2018) (unpublished
memorandum). Melecio did not file a petition for allowance of appeal with the
Pennsylvania Supreme Court.
____________________________________________
1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1).
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On January 7, 2019, Melecio, pro se, filed the instant timely PCRA
Petition. The PCRA court appointed Melecio counsel, who filed an Amended
Petition. On June 4, 2019, following a hearing, the PCRA court denied
Melecio’s Petition. Melecio filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Melecio presents the following claim for our review:
Whether the [PCRA c]ourt’s denial of [Melecio’s] Petition for
[p]ost-[c]onviction [c]ollateral [r]elief and failure to find [that
trial] counsel was ineffective was an abuse of discretion[,] where
trial counsel failed to introduce into evidence the testimony and/or
repo[r]t of Dr. Suzanne Rotolo[,] which noted discrepancies and
issues with the [“SAFE”]2 exam conducted on the victim[,] and
said evidence would have countered the [testimony of] the expert
witness, [SAFE] nurse Patti O’Brien, [who was] called by the
Commonwealth?
Brief for Appellant at 3.
“The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is free
of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.
2017). “The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Id. (citation omitted).
Melecio alleges that his trial counsel, James Rader, Esquire (“Attorney
Rader”), was ineffective in failing to call Susanne Rotolo, M.D. (“Dr. Rotolo”),
to testify as an expert witness at trial. See Brief for Appellant at 9-17. Melecio
____________________________________________
2“SAFE” is an acronym for “Sexual Assault Forensic Examiner.” See N.T.,
9/12/17, at 182.
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claims that Attorney Rader’s explanation for not calling Dr. Rotolo as a
witness—that Dr. Rotolo’s testimony would have been redundant with his
cross-examination of SAFE nurse Patti O’Brien (“O’Brien”)—was unreasonable,
because Attorney Rader failed to elicit from O’Brien all of the information to
which Dr. Rotolo would have testified. Id. at 13-17. Specifically, Melecio
claims that Dr. Rotolo would have testified that O’Brien could not determine,
by the nature of the victim’s bruising, whether (1) Melecio’s sexual contact
with the victim was non-consensual, and (2) the bruising was caused by
Melecio’s sexual contact with the victim. Id. Melecio states that he was
prejudiced because the additional information may have led the jury to find
him not guilty. Id.
To prevail on a claim of ineffective assistance of counsel under the PCRA,
a petitioner must plead and prove, by a preponderance of the evidence, that
counsel’s ineffectiveness “so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically,
[t]o be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) he suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable
probability the result of the proceeding would have been different.
Commonwealth v. Chmiel, … 30 A.3d 1111, 1127 (Pa. 2011)
(employing ineffective assistance of counsel test from
Commonwealth v. Pierce, … 527 A.2d 973, 975-76 (Pa. 1987)).
Counsel is presumed to have rendered effective assistance.
Additionally, counsel cannot be deemed ineffective for failing to
raise a meritless claim. Finally, because a PCRA petitioner must
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establish all the Pierce prongs to be entitled to relief, we are not
required to analyze the elements of an ineffectiveness claim in any
specific order; thus, if a claim fails under any required element,
we may dismiss the claim on that basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote and
some citations omitted).
Relating to the reasonable basis prong, generally, where
matters of strategy and tactics are concerned, counsel’s
assistance is deemed constitutionally effective if he chose a
particular course that had some reasonable basis designed to
effectuate his client’s interests. Courts should not deem counsel’s
strategy or tactic unreasonable unless it can be concluded that an
alternative not chosen offered a potential for success substantially
greater than the course actually pursued.
Commonwealth v. Durrett King, 195 A.3d 255, 259 (Pa. Super. 2018)
(quotation marks, brackets and citations omitted).
Where a claim is made of counsel’s ineffectiveness for failing
to call witnesses, it is the appellant’s burden to show that the
witness existed and was available; counsel was aware of, or had
a duty to know of the witness; the witness was willing and able to
appear; and the proposed testimony was necessary in order to
avoid prejudice to the appellant. The mere failure to obtain an
expert rebuttal witness is not ineffectiveness. [The a]ppellant
must demonstrate that an expert witness was available who would
have offered testimony designed to advance appellant’s cause.
Trial counsel need not introduce expert testimony on his
client’s behalf if he is able effectively to cross-examine
prosecution witnesses and elicit helpful testimony.
Additionally, trial counsel will not be deemed ineffective for
failing to call a medical, forensic, or scientific expert merely
to critically evaluate expert testimony that was presented
by the prosecution. Thus, the question becomes whether or not
defense counsel effectively cross-examined the Commonwealth’s
expert witness.
Chmiel, 30 A.3d at 1143 (citations, quotation marks and brackets omitted;
emphasis added).
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It is undisputed that Dr. Rotolo was able and willing to testify at
Melecio’s trial. Therefore, our inquiry is limited to whether trial counsel
effectively cross-examined the Commonwealth’s expert witness. See id.,
supra.
In his cross-examination of O’Brien, Attorney Rader elicited the following
testimony:
Q. [Attorney Rader:] Now, I’m going to refer you to Page 2 of 29
of your report, okay?
A. [O’Brien:] Okay.
Q. And I’m going to be at the last line of that report. Well, before
I get to that, at the top of each page, it’s printed – that [sic] the
[victim]’s description of events, correct?
A. Correct.
Q. And you record exactly what he or she says, correct?
A. Yes. Correct.
Q. So going back down to that last line, I’m going to read this to
you and ask if it’s correct, what you wrote: quote, he said he
couldn’t forgive me. And he was leaving. Is that what that says?
A. Yes.
Q. And at the top of Page 3A of 29, I’m going to read this to you
and ask if it’s correct: we were going back and forth. I asked him
not to leave. This went on for 20 minutes. I got up, and headed
to the bedroom. I told him do whatever he wants to do. Is that
what you wrote there?
A. Yes.
….
Q. Now, throughout this examination, you, being an ethical nurse,
you noticed or you noted that [the victim] stated that she was in
pain; is that correct?
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A. Yes, that is correct.
Q. Can you yourself measure pain?
A. I myself, no. We have a scale that we use to measure pain,
which is asking the patient from one to ten, one being the minimal
amount of pain, ten being the worst pain ever, how would you
rate your pain.
Q. So that’s subjective. It’s based on the patient’s feeling?
A. That’s correct.
Q. Their feelings?
A. That’s correct.
Q. You can’t take a photograph of that?
A. No.
Q. Now, the prosecution for the Commonwealth showed you a
bunch of those body diagrams?
A. Yes.
Q. And you drew little, whatever -- images on that to the best of
your professional ability, correct?
A. Correct.
Q. And that’s more or less to note the location of these, what you
call, injuries?
A. Correct.
Q. But to get a better accurate depiction, you take a photograph;
is that correct?
A. That is correct.
Q. Now, you saw those body diagrams. We saw the front part of
the body, the back part of the body. We saw the sides, right and
left, correct?
A. Correct.
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….
Q. And you note a lot of what you are interpreting to be bruises?
A. Yes.
Q. And you, in fact, you were able to measure them with your
scale?
A. Yes.
Q. Is it possible to date those bruises?
A. No, it is not.
Q. So based on your professional experience, you can’t tell if that
bruise occurred on August 31st, or if it occurred on August 28th
or August 29th?
A. No.
….
Q. So Nurse O’Brien, I’m showing you what’s been marked as
Commonwealth’s Exhibit 10. And again, could you describe for
the jury what that is?
A. That is a bruise, right there where I have that circled.
Q. Now, what color would you describe that bruise?
A. To be accurate, I’m going to get to my notes. Red/purple.
Q. So that’s not what you referred to as an erythema or the
redness?
A. No.
Q. And again, you can’t determine when that bruise occurred[,]
whether it was August 31st or a couple [of] days before?
A. No.
Q. Now, can you tell if a bruise was caused through consensual
activity, accidental activity, or nonconsensual activity?
A. Unless we’re told, no.
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….
Q. Now, you described -- and we saw some photographs of [the
victim’s] eye area, correct?
A. That is correct.
Q. And you observed or testified that there were certain areas that
showed petechial hemorrhages?
A. Correct.
Q. And those petechial hemorrhages are what some laymen refer
to as pinpoints?
A. In terms of size?
Q. Yes.
A. Yes, I used the word pinpoint.
Q. And that’s as a result of a blood vessel bursting?
A. Correct.
Q. Now, it’s your testimony that the cause of that petechial
hemorrhage is based on being strangled?
A. That was consistent with what was in the patient history.
Q. If a person is being strangled, are they able to breathe?
A. It depends on how -- it depends on the amount of force and
pressure that’s applied.
Q. So if a person is being choked or someone’s hands are around
a person’s neck, but they are able to breathe, would they still
exhibit signs of a petechial hemorrhage?
A. Yes, it’s possible.
Q. If a person was being strangled or choked to the point they
could not breathe, would they show more petechial hemorrhages?
A. Most likely. Everybody is different in terms of how their vessels
are and that type of thing.
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Q. Have you ever been a part of autopsies?
A. No, I have not.
Q. Would you also exhibit potential petechial hemorrhages on the
eyelids -- the inside of the eyelids?
A. That’s possible, yes.
Q. Are there any other explanations for how a petechial
hemorrhage may result?
A. In the eye?
Q. Yes.
A. Yes. Vomiting, excess coughing, those are things that can
cause petechial hemorrhages in the eyes.
Q. So you said vomiting, excessive coughing?
A. Yes.
Q. Allergies. How about allergies?
A. I’m not sure that I can answer that question.
Q. How about just crying, if you’re crying extensively?
A. No, not typically. Not in my experience.
Q. So something that would cause pressure on your head area?
A. Correct.
Q. Like vomiting or excessive coughing?
A. Correct.
Q. Had you asked [the victim] if she had vomited prior to the
examination?
A. Yes. We have a page -- Page 7 of my report. And then -- I
apologize -- this is [sic] questions that we ask since the assault
took place. And then we ask specific questions and one of those
questions is about vomiting. And she had indicated since the
assault happened that she had not vomited.
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Q. Had you asked her if she had coughed excessively at any point
after the alleged assault prior to the exam?
A. On the physical part of the exam that we do -- because we also
do a physical exam, we go through each section and it’s actually
on Page 4 of my medical report. And we ask them about -- []
under pulmonary[,] whether there’s shortness of breath,
coughing, wheezing, or other, meaning anything else in the
pulmonary system that was causing her an issue. And that was
marked as negative, so she did not have any excessive coughing.
Q. And that’s based on her reporting?
A. Correct.
Q. Now, with respect to the petechial hemorrhages on the roof of
the mouth --
A. Yes.
Q. -- could those hemorrhages been caused by anything other
than what was described by [the victim]?
A. Yes, it could be caused by an object.
Q. Could it be caused by eating hard food item?
A. No, not typically.
Q. Now, you noted on the body diagrams, as far as the genital
areas, numerous, what you described as, lacerations?
A. Yes.
Q. Did you measure those lacerations?
A. That’s an area that is difficult to measure because the scale
that we use is a rigid scale, plus you would not want to bend a
scale to alter a measurement -- and being that the pain -- excuse
me, the exam was causing her a lot of pain, she wasn’t able to
completely relax her legs. So I was not able to use a scale and
we don’t typically use a school [sic].
Q. So the short answer is no, you did not measure the lacerations?
A. Correct.
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Q. Now, you testified on direct that when you examined the
cervical os or os --
A. Os, O- S.
Q. -- that you noted a bruise?
A. It was actually to the side of the cervical os, and also below it.
Q. Now, was that a bruise or was that bleeding or was that a
laceration?
A. There -- in the cervical os itself, which is the little slit there,
there was some blood in there. When we -- when I do the exam,
I take a video of it, just how it is. And then once the swabs are
collected and the evidence is collected, then I’ll take another
larger Q- Tip to wipe away any discharge or blood so that I can
get a better look at what is actually on the cervix.
Q. Did you do that in this case?
A. Yes, I did.
Q. You also testified on direct that you had not frequently seen
that type of injury on the cervix in all the examinations that you’ve
done?
A. Correct.
Q. When you say not frequent, can you give us percentage, a
number?
A. Maybe between 10 and 15 percent that I’ve seen bruising. And
that’s taking a guess off the top of my head.
Q. So it’s an estimate, right?
A. Yes.
Q. So 10 to 15 percent you had seen that type of injury on the
cervix, correct?
A. In my examinations, and I’ve seen injury on the cervix through
educational -- continuing educational things that I’ve done.
Q. And how many examinations have you done?
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A. 502.
Q. So of those 500 exams, you’ve seen that type of injury on -- if
my math is correct -- about 50 of them?
A. It’s possible.
….
Q. Now, the small laceration or tears that you observed during
your examination in the genital area, could they have been from
consensual activity within a five-day period?
A. Could be.
….
Q. So, if you take [the victim]’s statements to you, set them aside,
and you observed these bruises, and erythema and the
lacerations, can you form an opinion as to whether those were
caused by consensual activity, nonconsensual activity, or
accidental?
A. It’s a difficult way to answer that. I would say with the amount
of injury that was there -- well, I guess your answer is no, I can’t
tell which it is.
Q. And again, you are aware from her history that there was
apparently prior consensual activity a couple days before this
incident?
A. Yes, I was.
N.T., 9/12/17, 230-46.
On re-cross, Attorney Rader elicited the following relevant testimony:
Q. [Attorney Rader:] You testified on redirect that the bruises
that you observed during this examination could have happened
within a day?
A. [O’Brien:] Correct.
Q. But again, they could have happened within five days; is that
correct?
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A. That is correct.
Q. And based on your examination and your experience and
training, you noted that the injuries that you observed were
consistent with [the victim’s] history to you; is that correct?
A. That is correct.
Q. If [the victim] had told you that -- well, it was consensual sex,
but it was rather rough sex, would those injuries have been
consistent with that history?
A. It would depend on what the history she provided me and what
would mean rough sex.
Id. at 255-56.
Here, Attorney Rader elicited testimony from O’Brien that she could not
determine, based on the nature of the victim’s bruises, whether (1) the sexual
contact was non-consensual, and (2) the bruising resulted from Melecio’s
sexual contact with the victim. Therefore, we conclude that Attorney Rader
effectively cross-examined O’Brien regarding the information to which Melecio
claims Dr. Rotolo would have testified, and Dr. Rotolo’s purported testimony
would not have furthered Melecio’s case. See Chmiel, supra. Accordingly,
Attorney Rader was not ineffective in deciding to not call Dr. Rotolo as a
witness, and the PCRA court properly denied Melecio’s PCRA Petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/03/2020
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