Com. v. Vessels, D.

J-S69013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEWAYNE VESSELS
Appellant No. 2805 EDA 2013
Appeal from the PCRA Order October 3, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0202771-1999
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 05, 2014
Appellant, Dewayne Vessels, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises three issues for our review:
THE COURT ERRED IN DENYING [APPELLANT’S]
PCRA PETITION WHERE TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO IMPEACH THE VICTIM
WITH HIS PRIOR JUVENILE RECORD?
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
J-S69013-14
THE COURT ERRED IN DENYING [APPELLANT’S]
PCRA PETITION WHERE TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL
COURT’S BAR OF ANY MENTION OF THE CRIMINAL
TRIAL OF BISHOP BRIAN EDWARDS BY DEFENSE
COUNSEL?
THE COURT ERRED IN DENYING [APPELLANT’S]
PCRA PETITION WHERE TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO RAISE DISCOVERY
VIOLATIONS BY THE COMMONWEALTH RELATING TO
MEDICAL RECORDS THAT SHOWED THAT
GONORRHEA WAS CONTRACTED BY BOTH THE
VICTIM AND [APPELLANT]?
(Appellant’s Brief at 5).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA
hearing as a matter of right; the PCRA court can decline to hold a hearing if
there is no genuine issue concerning any material fact, the petitioner is not
entitled to PCRA relief, and no purpose would be served by any further
proceedings. Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012).
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J-S69013-14
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Peter F.
Rogers, we conclude Appellant’s issues merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed January 16, 2014, at 2-6)
(finding: 1) trial counsel was not ineffective for failing to impeach victim
with juvenile record; prior to trial, court conducted hearing to examine
victim’s juvenile adjudications; court determined victim’s juvenile record did
not include adjudications for crimen falsi offenses; 2) trial counsel was not
ineffective for failing to object to court barring mention of separate criminal
“trial” of Brian Edwards, another individual who allegedly molested victim;
although Commonwealth had pursued criminal charges against Mr. Edwards,
it withdrew charges prior to Mr. Edwards’ preliminary hearing; 3) trial
counsel was not ineffective for failing to raise purported discovery violation
regarding disclosure of medical records showing Appellant and victim both
contracted gonorrhea; trial counsel did make pretrial objection to bar
victim’s testimony that he had contracted gonorrhea; trial counsel also
sought to preclude Commonwealth’s admission of report regarding
Appellant’s diagnosis; court determined Appellant had adequate pretrial
notice that Commonwealth would introduce victim’s medical records,
because criminal complaint alleged that victim had contracted sexually
transmitted disease; Commonwealth was under no duty to provide Appellant
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J-S69013-14
with medical records, which were available to both parties; moreover, court
properly admitted medical reports into evidence; it was highly relevant that
both victim and Appellant contracted sexually transmitted disease around
same time; additionally, trial counsel conducted full and complete cross-
examination of Commonwealth’s medical expert). Accordingly, we affirm on
the basis of the PCRA court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2014
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CP-51-CR-0202n1-1999Ccmm. v Vessels, Dewayne
Oplnron
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLV,/
CRIMINAL TRIAL DIVISION IIIIIIIIIUIIII"" m
7105628301
C0lvTh10N"WEALTH OF PENNSYL VANIA PHILADELPHIA COUNTY
COURT OF C0lvTh10N PLEAS
VS.
2805 EDA 2013
DWAYNE VESSELS, CP-5l-CR-0202771-1999
Appellant
PCRA
JAN 16 2014 . FILED- -
Criminal App;:;a!s Unit
First JudicitPlNJlO1»f PA JAN 1 61014
ROGERS, J. POSITrialUnit
On June 2, 2002, following a jury trial, Dwayne Vessels (Defendant) was found
guilty of involuntary deviate sexual intercourse, endangering the welfare of a child, and
corruption of minors. On May 16, 2003, Defendant was sentenced to an aggregate term
often (10) to twenty (20) years incarceration, followed by ten (10) years reporting
probation. Thereafter, Defendant's convictions and sentence was affirmed, and no
petition for allocator was filed. On January 5, 2009, Defendant filed a pro se Post-
Conviction Relief Act (PCRA) petition, which was subsequently amended by counsel and
filed on December 13, 2011. After review and consideration, Defendant's petition was
denied on October 3,2013. Defendant has appealed that decision. This opinion follows.
The factual background concerning this matter can be summarized in the
following manner: In this case, Defendant (33) befriended the victim, M.Y. (14), who
was homeless. Defendant took him into his home and gave him a bedroom, where he
molested and raped him on numerous occasions. Even after the Defendant later took in
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the victim's mother and siblings (who were also homeless) he continued to molest the
victim in his room. At a funeral for the victim's cousin, Bishop Brian Edwards, who
presided over the service befriended the victim and later began sexually molesting the
victim as well. The victim told Defendant of Edward's abuse, and Defendant took the
victim to the police. However, after some time, the police eventually suspected
Defendant as committing crimes against the victim as well, and after questioning him
alone, the victim told police of all the crimes committed against him by Defendant who
was subsequently arrested.
After a review of the record, no relief is warranted as the PCRA court properly
dismissed the petition. For the following reasons stated herein, Appellant fails to assert
any claim upon which relief can be granted.
-
It is well settled that the law presumes that counsel was effective at trial and the
defendant carries the burden of proving ineffectiveness. Commonwealth v. Baker, 614
A.2d 663 CPa. 1992). It is the petitioner who bears the burden of proving that (1) the
underlying claim has arguable merit; (2) counsels' action or inaction had no reasonable
basis; and (3) the petitioner was prejudiced by the act or omission to such a degree that
but for counsel's conduct, the outcome of the proceeding would have been different.
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v. Bomar, 826 A.2d
831 (Pa. 2003) (emphasis added). If any of these elements are not satisfied, the claim
fails. Commonwealth v. Fulton, 830 A.2d 567 (Pa. 2003). A claim of ineffectiveness of
counsel will only be granted when the petitioner establishes the counsel's conduct so
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undermined the truth determining process that no reliable verdict could have been
rendered. See, 42 Pa.C.S.A §9543.
In his first assertion of alleged ineffectiveness, Defendant claims that trial counsel
was ineffective for failing to impeach the victim with his prior juvenile record.
Prior to trial, during a hearing concerning a motion in limine, the issue was
discussed as to the victim's juvenile adjudications. All parties, including the court, were
in agreement that the victim had two (2) open cases. However, it was determined that the
victim's prior criminal record did not include any adjudication for crimenfalsi crimes.
It is well settled that prior convictions can only be used as impeachment when they
involve criminfalsi offenses, including dishonesty or false statement. Commonwealth v.
Randell, 528 A.2d 1326 CPa. 1987); see also Pa.R.E. 609. The victim's prior record did
not include any crimin falsi offenses. Because this information was known to Defendant
in open court, defense counsel cannot be faulted for taking a meritless action that was
inconsistent with the law. Commonwealth v. Thomas, 783 A.2d 328 CPa. Super. 2001).
Therefore, no claim of ineffectiveness can be sustained. Defendant fails to satisfy the first
element in an ineffectiveness claim - that the issue has arguable merit.
Next, Defendant claims that trial counsel was ineffective for failing to object to the
trial court's bar of any mention of the separate criminal trial of Bishop Brian Edwards.
This claim of alleged ineffectiveness cannot be sustained, as the assertion is moot.
After investigation, it was learned that all charges against Edwards were withdrawn. The
Commonwealth was forced to withdraw all charges against Edwards prior to the
preliminary hearing due to the fact that the victim could not be secured and brought to
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court from out-of-state Department of Human Services (DHS) placement. 1 Again,
defense counsel cannot be faulted for taking a meritless action. Thomas.
Lastly, Defendant claims that trial counsel was ineffective for failing to raise
discovery violations by the Commonwealth relating to medical records showing that
Defendant and the victim both contracted gonorrhea.
Prior to trial, Defendant sought to bar the testimony of the victim concerning the
fact that he had contracted gonorrhea because it was considered a medical diagnosis and
was therefore barred as hearsay. He also sought to preclude the Commonwealth from
presenting any report regarding Defendant's testing positive for gonorrhea because the
Commonwealth had not presented Defendant with an expert report. He argued that such a
report was subject to mandatory disclosure. Defendant's basis for that argument was that
1) he had no time to prepare for an appropriate cross-examine such a report, and 2) he did
not have the funds to hire a rebuttal expert.
At the pre-trial hearing, Defendant argued that the Commonwealth only recently
advised the defense that it would be calling a medical expert to testify that the victim had
tested positive for a sexually transmitted disease. Following argument from both sides,
the court denied the defense motion, determining that Defendant had adequate notice of
the introduction of the victim's medical records prior to trial given the fact that it was
also alleged in the criminal complaint that the victim contracted a sexually transmitted
disease. The court also ruled that the Commonwealth could introduce evidence of
1 The charges against Brian Edwards (MC-51-CR-0952741-1999) were withdrawn by the Commonwealth on
November 16, 1999.
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Defendant's physical condition by calling a medical expert to testify that Defendant's
medical records confirmed he had gonorrhea.
Even though defense counsel voiced objections on the record concerning this
issue, he was not required to do so. The Commonwealth was under no duty to provide the
defense with either the medical records of Defendant or the victim, as that information
was available to both parties. Commonwealth v. Appel, 689 A.2d 891 (Fa. 1997);
Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999); and Commonwealth v. McElroy, 665
A.2d 813 (pa. Super. 1995) (no violation concerning discovery where the evidence was
available to both parties).
Moreover, although trial counsel.did voice an objection as to the admissibility of
the medical reports in question, the evidence was properly admitted into the record.
Commonwealth v. Brown, 987 A.2d 699 (Pa. 2009) (questions regarding admissibility of
evidence rest within the discretion of the trial court). There was no abuse of discretion in
admitting this information into the record and defense counsel was not obligated to
object, as the material was relevant, probative, and available to both sides; therefore, no
discovery violation occurred. Commonwealth v. McElroy, 665 A.2d 813 (Pa. Super.
1995). It was highly relevant, and not prejudicial, that both the victim (anus) and
defendant (penis) contracted an STD within the same timeframe.
Not only did defense counsel have adequate time in preparing to rebut such
evidence, counsel conducted a full and complete cross-examination of the
Commonwealth's expert medical witness.
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Defendant's claim does not have arguable merit. Defendant cannot demonstrate
how he was prejudiced in this situation. The term "prejudice," in the context of
ineffectiveness of counsel, means that there is a reasonable possibility that, but for
counsel's unprofessional errors, the result of the trial would have been different. Pursell.
The trial court's ruling on admissibility of the medical records was proper, and the
Commonwealth was not required by law to turn over information readily available to the
defense. No prejudice resulted, as trial counsel was more than effective in preparing for
the defense.
Defendant cannot satisfy any claim of attorney error. For the reasons stated herein,
Appellant's claims should be dismissed.
PETER F. ROGERS
COURT OF C :MM:ON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYL VANIA
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