Com. v. Rippey, E.

J-A19016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ETHAN W. RIPPEY :
:
Appellant : No. 1327 MDA 2021
Appeal from the PCRA Order Entered September 21, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001230-2017
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: DECEMBER 19, 2022
Appellant, Ethan W. Rippey, appeals from the order entered in the York
County Court of Common Pleas, which dismissed his first petition filed under
the Post Conviction Relief Act (“PCRA”).1 We affirm.
A prior panel of this Court set forth the relevant facts and procedural
history of this appeal as follows:
On August 21, 2016, K.H. (“the victim”) and Appellant, both
college students, were drinking at a college party in York
when Appellant invited [the victim] and others over to his
house. Appellant and the victim went alone to the house to
play beer pong. They kissed a bit, and then toured the
house, ending up in Appellant’s bedroom. They kissed some
more and Appellant digitally penetrated the victim’s vagina.
When the penetration became rough, however, the victim
asked him to stop. He did not stop, and she pushed him
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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away. Appellant then grabbed her and forced his penis into
her mouth. Although the victim pushed him away again,
and continually said “no,” Appellant pushed her onto his
bed, strangled her, and anally and vaginally raped her.
After Appellant climaxed, he called the victim a “dirty little
slut” as she ran crying out of the house and back to the
party. Her friends took her to the York Hospital where a
forensic nurse conducted a SAFE rape examination. One
week later, the victim reported the incident to the college’s
campus security and eventually she reported it to the York
City Police Department.
The Commonwealth charged Appellant with [rape by forcible
compulsion, involuntary deviate sexual intercourse by
forcible compulsion, sexual assault, and simple assault].
Prior to trial, Appellant filed a Motion in limine, requesting,
among other things, that the court preclude the
Commonwealth’s sexual assault forensic expert from
testifying that the victim’s injuries were consistent with
“non-consensual sex.” The court granted the Motion, in
part, and precluded the expert from using the phrase
“consistent with non-consensual sex.” The court noted,
without objection from Appellant, that the expert would be
allowed to opine on whether the injuries were caused by
force.
At Appellant’s three-day jury trial, the Commonwealth
presented the testimony of the victim, the SAFE nurse
examiner, and the sexual assault forensic expert, among
others. The victim testified regarding the evening of the
rape and her extensive physical and psychological injuries.
On cross examination, she testified that she had had one
prior incident with Appellant in the spring of 2016 where all
she remembered was drinking and playing video games with
Appellant and two others before waking up bent over
Appellant’s bed with Appellant standing behind her pulling
up his pants, and her crying because she did not know what
had occurred. She also recalled that she was bleeding anally
later that evening.
The nurse examiner testified regarding the extensive
injuries to the victim’s body, stating that of 270 SAFE rape
examinations she had conducted, the examination of the
victim revealed the most injuries she had ever had to
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document. She stated that the victim had numerous
lacerations, abrasions, and bruises in her vagina and anus,
including a large laceration in the victim’s anus “caused by
blunt force trauma.” The nurse also testified that she was
unable to conduct a full internal examination because the
victim was in too much pain.
The sexual assault expert testified that she reviewed the
victim’s medical chart and opined that the lacerations the
victim received on August 21, 2016, resulted from “blunt
force trauma,” and were “consistent with force.”
Appellant testified that the August 2016 encounter was
consensual rough sex, and stated “it takes two to tango.”
When counsel acknowledged that Appellant had been in the
courtroom throughout all of the testimony presented by the
Commonwealth, Appellant responded, “Yeah. I’ve missed a
lot of class because of it.”
The jury convicted Appellant of the above charges. The
court ordered a presentence investigation (“PSI”), and the
Sexual Offenders Assessment Board (“SOAB”) evaluated
Appellant. The court held Appellant’s sentencing hearing on
February 20, 2019. The Commonwealth presented a
statement from the victim and her aunt. A few of
Appellant’s friends and family members presented
statements, and the court acknowledged that Appellant had
provided many letters of support from other friends and
family members. The sentencing court noted its review of,
inter alia, the PSI report, the SVP report, the victim’s impact
statement, and the many letters written on behalf of
Appellant. The court also noted Appellant’s prior record
score of zero before it imposed a sentence of 7½ to 15 years’
incarceration on the rape by forcible compulsion conviction,
a consecutive term of 9½ to 19 years’ incarceration on the
IDSI by forcible compulsion conviction, and a concurrent
term of 3 to 6 months’ incarceration for the simple assault
conviction, for an aggregate of 17 to 34 years’ incarceration.
Commonwealth v. Rippey, No. 627 MDA 2019, unpublished memorandum
at 1-2 (Pa.Super. filed March 20, 2020) (internal footnote and citations to the
record omitted).
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On March 20, 2020, this Court affirmed Appellant’s judgment of
sentence and Appellant did not seek further review with our Supreme Court.
On December 3, 2020, Appellant filed a timely counseled PCRA petition. After
holding an evidentiary hearing on May 21, 2021, the PCRA court denied
Appellant’s petition on September 21, 2021. Appellant filed a timely notice of
appeal on October 14, 2021. On October 19, 2021, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal and Appellant complied on October 29, 2021.
Appellant raises the following issues for our review:
Whether trial counsel was ineffective in failing to present
character witnesses in a sexual assault case involving a
consent defense where Appellant had no prior criminal
convictions and nearly seventy people willing to testify to
his excellent reputation for being a peaceful, law-abiding
person.
Whether trial counsel was ineffective in failing to object both
1) to the use of an expert witness to testify that the
complainant’s injuries occurred “by force” given that force
was an element of the crime charged and this conclusion
improperly usurped the role of the jury and 2) to the trial
court’s reminder to the jury during instructions that an
expert had testified specifically regarding this element with
respect to the Rape and IDSI charges.
Whether trial counsel was ineffective in failing to object to
the expert testimony that the injuries were the worst
injuries that the expert had ever seen in a case such as this
because any comparison to other cases was irrelevant,
unfairly prejudicial, and amounted to the improper
bolstering of the complainant’s credibility.
Whether trial counsel was ineffective in failing to challenge
the requirement that [Appellant] register under [the Sexual
Offender Registration and Notification Act (“SORNA”)]
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because the SORNA statute provides an unconstitutional,
irrebuttable presumption that deprives [Appellant] of his
right to reputation in this case where the Sex Offender
Assessment Board found that Appellant was not a sexually
violent predator, Appellant had no prior record, and nearly
seventy people wrote letters on his behalf for sentencing.
(Appellant’s Brief, at vii-viii).
In his issues combined, Appellant contends that trial counsel provided
ineffective assistance at several points during the pendency of his trial. First,
Appellant claims that trial counsel was aware that there were numerous people
who were willing to testify to Appellant’s good reputation in the community
and Appellant had no prior convictions with which these witnesses could have
been impeached. Appellant argues that trial counsel had no rational basis for
failing to call character witnesses given that this case hinged on the credibility
of Appellant’s testimony that the sex was consensual and failure to do so
critically impacted the outcome of his trial.
Second, Appellant asserts that trial counsel failed to object when the
Commonwealth’s sexual assault forensic expert testified that the victim’s
injuries occurred “by force” which effectively usurped the role of the jury
because force is an element of two of the offenses at issue. Appellant
maintains that trial counsel should also have objected when the court
mentioned the expert’s testimony regarding force during jury instructions and
trial counsel’s failure was unjustified and prejudicial.
Third, Appellant claims that trial counsel should have objected to the
nurse examiner’s testimony that the victim’s injuries were the most that she
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had ever seen. Appellant argues that such testimony was unfairly prejudicial
to Appellant as Appellant had no way to challenge these assertions, and trial
counsel had no basis for failing to object.
Finally, Appellant contends that trial counsel’s failure to challenge
Appellant’s SORNA registration requirement was unreasonable where
Appellant did not have a prior record and the Sex Offender Assessment Board
did not deem Appellant a sexually violent predator. Appellant concludes that
the PCRA court erred in finding that trial counsel provided effective assistance,
and this Court should vacate the order denying his PCRA petition and grant
him a new trial. We disagree.
“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. Beatty,
207 A.3d 957, 960-61 (Pa.Super. 2019), appeal denied, 655 Pa. 428, 218
A.3d 850 (2019). 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). “[W]e review the court’s legal conclusions
de novo.” Commonwealth v. Prater, 256 A.3d 1274, 1282 (Pa.Super.
2021), appeal denied, __ Pa. __, 268 A3.d 386 (2021).
“Counsel is presumed to have rendered effective assistance.”
Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa.Super. 2020), appeal
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denied, ___ Pa. ___, 242 A.3d 908 (2020).
[T]o establish a claim of ineffective assistance of counsel, a
defendant must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence
could have taken place. The burden is on the defendant to
prove all three of the following prongs: (1) the underlying
claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction;
and (3) but for the errors and omissions of counsel, there is
a reasonable probability that the outcome of the
proceedings would have been different.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019),
appeal denied, 654 Pa. 568, 216 A.3d 1029 (2019) (internal citations and
quotation marks omitted). The failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111 (2011).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit[.]” Commonwealth
v. Smith, 167 A.3d 782, 788 (Pa.Super. 2017), appeal denied, 645 Pa. 175,
179 A.3d 6 (2018) (quoting Commonwealth v. Pierce, 537 Pa. 514, 524,
645 A.2d 189, 194 (1994)). “Counsel cannot be found ineffective for failing
to pursue a baseless or meritless claim.” Commonwealth v. Poplawski,
852 A.2d 323, 327 (Pa.Super. 2004).
“Once this threshold is met we apply the ‘reasonable basis’ test to
determine whether counsel’s chosen course was designed to effectuate his
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client’s interests.” Commonwealth v. Kelley, 136 A.3d 1007, 1012
(Pa.Super. 2016) (quoting Pierce, supra at 524, 645 A.2d at 194-95).
The test for deciding whether counsel had a reasonable
basis for his action or inaction is whether no competent
counsel would have chosen that action or inaction, or, the
alternative, not chosen, offered a significantly greater
potential chance of success. Counsel’s decisions will be
considered reasonable if they effectuated his client’s
interests. We do not employ a hindsight analysis in
comparing trial counsel’s actions with other efforts he may
have taken.
Commonwealth v. King, 259 A.3d 511, 520 (Pa.Super. 2021) (quoting
Sandusky, supra at 1043-44).
“To demonstrate prejudice, the petitioner must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different. [A] reasonable probability is a
probability that is sufficient to undermine confidence in the outcome of the
proceeding.” Commonwealth v. Spotz, 624 Pa. 4, 33-34, 84 A.3d 294, 312
(2014) (internal citations and quotation marks omitted). “[A] criminal
defendant alleging prejudice must show that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Hopkins, supra at 876 (quoting Commonwealth v. Chambers, 570 Pa. 3,
22, 807 A.2d 872, 883 (2002)).
When raising a claim of ineffectiveness for the failure to call
a potential witness, a petitioner satisfies the performance
and prejudice requirements … 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
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testify for the defense; and (5) the absence of the testimony
of the witness was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Sneed, 616 Pa. 1, 22-23, 45 A.3d 1096, 1108-09 (2012)
(internal citations omitted).
“Failure to present available character witnesses may constitute
ineffective assistance of counsel.” Commonwealth v. Harris, 785 A.2d 998,
1000 (Pa.Super. 2001), appeal denied, 577 Pa. 711, 847 A.2d 1279 (2004).
“Evidence of good character is substantive, not mere makeweight evidence,
and may, in and of itself, create a reasonable doubt of guilt and, thus, require
a verdict of not guilty.” Id. “Counsel has a reasonable, strategic basis for not
calling character witnesses if he has a legitimate reason to believe that the
Commonwealth would cross-examine the witnesses concerning bad-character
evidence.” Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa.Super. 2009).
Additionally, Rule 704 of the Pennsylvania Rules of Evidence states that
expert opinion testimony “is not objectionable just because it embraces an
ultimate issue.” Pa.R.E. 704. Further, Section 5920 of the Judicial Code
permits “qualified experts to testify in certain criminal proceedings about the
dynamics of sexual violence, victim responses to sexual violence, and the
impact of sexual violence on victims during and after being assaulted.”
Commonwealth v. Cramer, 195 A.3d 594, 608 (Pa.Super. 2018); 42
Pa.C.S.A. § 5920(b)(1). However, the statute “specifically precludes an
expert witness from opining on the credibility of any other witness, including
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the victim.” Id.; 42 Pa.C.S. § 5920(b)(3). The court must assess on a case-
by-case basis whether an expert’s testimony on this topic impermissibly
invades the jury’s province of determining credibility. Commonwealth v.
Jones, ___ Pa. ___, ___, 240 A.3d 881, 897 (2020).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the PCRA court, we conclude
Appellant’s issues merit no relief. In its opinion, the PCRA court
comprehensively discusses and properly disposes of the issues presented.
(See PCRA Court Opinion, filed 9/21/21, at 2-33)
Regarding Appellant’s claim of ineffective assistance based on failure to
call character witnesses, the PCRA court determined that trial counsel had a
reasonable basis for her decision because the Commonwealth was likely to
cross-examine the proffered character witnesses about Appellant’s admission
that he had rough sex with the victim on a prior occasion while she was
intoxicated, to rebut a claim of Appellant’s peaceful nature. “By not calling
character witnesses, of what she deemed minimal probative value, [trial
counsel] eclipsed the opportunity of the Commonwealth to cross-examine
them to [Appellant’s] detriment, as they did at the PCRA hearing, by
repeatedly highlighting his appetite for rough sex and anal sex to a jury of
York Countians.” (PCRA Court Opinion at 8). See also Hull, supra. Further,
given the extensive nature of the victim’s injuries and her credible testimony
that the sex was nonconsensual, Appellant’s proffered character evidence was
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not likely to change the outcome of the trial. See Spotz, supra.With respect to trial counsel’s failure to object to testimony from the
Commonwealth’s expert regarding “force,” the court found that there was no
arguable merit to such an objection as the Pennsylvania Rules of Evidence
permit an expert to opine on the ultimate issue. Additionally, the court
explained in its jury instructions that the testimony from the Commonwealth’s
expert about force was a medical conclusion and it was the role of the jury to
determine whether the evidence established the legal element of force.
Accordingly, any potential prejudice from the expert’s testimony was cured by
the court’s instructions. See Hopkins, supra.
Further, the court found that there was no arguable merit to Appellant’s
claim that trial counsel’s failure to object to testimony from the
Commonwealth expert that the victim’s injuries were the worst the expert had
ever seen. Specifically, the court noted that the expert testimony was relevant
because the extent of the victim’s injuries was evidence to rebut Appellant’s
testimony that the parties engaged in consensual sex. Additionally, the jury
was presented with extensive evidence of the severity of the victim’s injuries
from multiple sources so the exclusion of this statement would not have
resulted in a different outcome at trial. See Spotz, supra.Finally, the court found that trial counsel could not be found ineffective
for failing to object to Appellant’s SORNA obligations on the grounds alleged
because the case on which Appellant relies, Commonwealth v. Muhammad,
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241 A.3d 1149 (Pa.Super. 2020), is distinguishable from the instant matter.
Unlike Appellant, the defendant in Muhammad was not convicted of a crime
involving sexual conduct.
The record supports the PCRA court’s analysis and disposition of the
issues raised on appeal. See Beatty, supra; Boyd, supra. Accordingly, we
affirm on the basis of the PCRA court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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Circulated 11/21/2022 01:46 PM