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HomeMy WebLinkAbout92-834 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA WAYNE MCOURDY : 834 CRIMINAL 1992 IN RE: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ORDER OF Cl;~JRT AND NOW, (~~-~ ~(~{ ~{~(~ ,Defendant's request for relief is denied. By the Court, Jaime M. Keating, Esquire Chief Deputy District Attorney Timothy L. Clawges, Esquire Assistant Public Defender COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. .' WAYNE MCCURDY : 834 CRIMINAL 1992 IN RE: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OPINION OF THE COURT HOFFER, J.: In this opinion, we address Defendant Wayne McCurdy's petition for Post Conviction Relief. Defendant McCurdy was convicted on January 20, 1993, of three counts of indecent assault, three counts of corruption of a minor, one count of involuntary deviate sexual intercourse, and two counts of aggravated indecent assault. These charges stem from three incidents in which McCurdy sexually abused his fourteen year old foster niece ("child"). These incidents occurred at the child's grandmother house between September and November 1991.~ McCurdy's abusive conduct included fondling and sucking the child's breast, digital penetration, and oral sex upon the child. Approximately a month after the ~ Defendant was involved in a motorcycle accident on August 29, 1991. As a result of this accident, his pelvis was broken in two places, his right wrist was shattered and the ligaments in his left wrist were strained. Defendant underwent surgery and a steel plate was put in his pelvis area along with an extemal fixator which was attached to his dght wdst. Upon being released from the hospital, Defendant went to stay with his foster family in Mechanicsburg. The assaults occurred when the child spent the night at this house on three different occasions. 834 CRIMINAL 1992 incidents, the child told her school guidance counselor, who proceeded to alert the appropriate authorities. McCurdy was convicted on all counts after a two day jury trial. McCurdy's post verdict motions were denied and he was sentenced to not less than five and no more than ten years imprisonment. McCurdy filed a post sentencing motion which was also denied. Defendant's subsequent appeal was denied, No. 13 Harrisburg 1994, by the Superior Court. The Defendant now comes before this court with a PCRA motion in which he claims ineffective assistance of counsel based upon five separate reasons. Ineffective assistance of counsel requires circumstances which so undermine the truth determining process that no reliable adjudication of guilt or innocence could take place. Commw. v. Lark, 698 A.2d 43 (1997). In order to prove ineffective assistance of counsel, the Defendant must plead and prove that (1) his claim is of arguable merit, (2) that counsel had no reasonable basis for the act or omission in question, and (3) that, but for counsel's act or omission, the outcome of the proceedings would have been different. Commw. v. Pierce, 527 A.2d 973 (1987). The law is well-settled in Pennsylvania that trial counsel is presumed to have been effective. Commw. v. Roberts, 681 A.2d 1274 (1996). The Defendant has brought forward five issues for alleged ineffectiveness 2 834 CRIMINAL 1992 of counsel. These issues include (1) failing to call Steven Long, an Air Force medic, as an expert to challenge the Commonwealth's expert; (2) failing to move to strike testimony of Dr. Kontak, the Commonwealth's medical expert; (3) failing to request a Iow grade instruction regarding a hypothetical presented to Dr. Kontak; (4) failing to object to testimony from the victim that the alleged acts occurred on different months and dates from the original charges; and (5) failing to ask for an alibi instruction or moving for a mistrial after the testimony concerning the differing dates occurred. We will take each of allegations individually. Defendant first alleges that counsel was ineffective for failing to call Steven Long, an Air Force medic, as an expert. The Commonwealth presented Dr. Jeffrey Kontak as an expert witness. Dr. Kontak was Defendant McCurdy's doctor during McCurdy's convalescence after his motorcycle accident. Dr. Kontak oversaw the Defendant's physical therapy and nursing care while the Defendant recuperated. Dr. Kontak was considered an expert in family practice and he mainly answered questions concerning the Defendant's physical capabilities at the time of the accident. The Defendant now claims that his trial counsel was ineffective for failing to qualify Steven Long as an expert. Mr. Long, a friend of the Defendant, did testify concerning the Defendant's condition around the time of the incidents. However, 3 834 CRIMINAL 1992 the Court finds that ineffective assistance of counsel can not be proven based upon Long not being certified as an expert. Defendant McCurdy did not prove that, but for counsel's action, the outcome of the trial would have been different. First, Long did not have the same medical education as Dr. Kontak since Long, while a medic, did not attend medical school. Therefore, Long's testimony might not have held the same weight with the jury even if he was classified as an expert. Second, Long did not observe McCurdy for any extended period of time, and Long stated on the stand that he did not know how the Defendant acted with his injuries while recuperating. Finally, Long was McCurdy's friend since 1989, which could cause the jury to determine that Long has a possible bias. Because. Dr. Kontak was not a friend of McCurdy's, the jury might not have found that same bias with Dr. Kontak and, therefore, his testimony might have carried more weight than Long's testimony. For these reasons, we find that counsel's action of failing to qualify Steven Long as an expert did not effect the outcome of the trial and does not meet the level of ineffective assistance of counsel. The second issue concerns the hypothetical which the Commonwealth posed to Dr. Kontak. The Commonwealth asked Dr. Kontak to think of a hypothetical 4 834 CRIMINAL 1992 man who had all of the same characteristics as McCurdy? The Commonwealth then told Dr. Kontak that this hypothetical man was able to walk without a crutch, drive a manual transmission automobile, and play pool and pinball. Dr. Kontak stated that if a man with the same physical characteristics of the Defendant was able to due all of the activities presented by the Commonwealth, then, in Dr. Kontak's opinion, that person would be able to perform all of the acts which McCurdy had been accused of at trial. When a hypothetical is presented at tdal, all information contained therein must be properly on the record. Evans v. Thomas, 450 A.2d 710 (1982). The Defendant claims that all of the information used in the hypothetical was not proven at trial. More specifically, the Defendant states that the only fact not proven in the hypothetical was that the Defendant played pinball during this time. Instead, the Commonwealth was able to prove that during the time of the incidents the Defendant had played air hockey. The Court finds that the differences between pinball and air hockey are minute since each game requires a player to stand up for an extended period of time and use manual control to manipulate the levers. In fact, this Court finds that air hockey requires more dexterity than pinball since 2 These characteristics include having been in the same type of accident as McCurdy, having the same type of injuries from the accident, having been in the hospital the same amount of time, and having the same amount of physical therapy as the Defendant. 5 834 CRIMINAL 1992 the player must reach from one lever to another, therefore requiring more arm and body movement. For this reason, we find that the Commonwealth sufficiently proved all of the facts necessary for the hypothetical. The Defendant's third claim is that counsel was ineffective for failing to request a Iow grade instruction regarding the Commonwealth's hypothetical. Opinion evidence can be classified as Iow grade when the expert expresses an opinion in response to a hypothetical question. However, the Pennsylvania Superior Court has said that in actual practice application of the Iow grade witness instruction is more constrained. Commw. v. Hernandez, 615 A.2d 1337, 1344 (1992). In Hernandez, the court said that Iow grade instructions were designed specifically for dealing with the competency of lay witnesses and psychiatrists testifying on questions of sanity. Id. We find in this case that the appropriate instructions were given to the jury. The jury was instructed with regard to the hypothetical question. Also, as the Superior Court has stated, Iow grade instructions are mainly for issues of sanity. The Defendant's sanity was not at issue in this case and therefore, there was no reason for a Iow grade instruction to be given. Additionally, Defendant's counsel chose to argue that Dr. Kontak's testimony was speculative. The Court does not find that, but for a Iow grade instruction, the outcome of the proceedings would 6 834 CRIMINAL 1992 have been different. The Defendant's fourth issue is that counsel was ineffective in failing to object to the child's testimony on the basis that it was inconsistent with earlier testimony given by the victim. The Information alleged that the incidents occurred in August, September and October of 1991. However, at trial, the child testified that the first incident occurred near the end of September, the second incident occurred in early November, and the third incident occurred in the middle of November. The Court finds that trial counsel effectively handled this problem through cross-examination of the witness and through arguing this point to the jury. The jury decides the credibility of the witnesses and trial counsel argued to the jury that the witness's testimony had changed. This Court finds that trial counsel handled this issue correctly and that counsel's actions were reasonable in light of the circumstances. The final issue set forth by the Defendant is that defense counsel was ineffective in failing to move for a mistrial or alibi instruction based upon the victim's differing testimony as to when the acts actually occurred. The Defendant claims that counsel should have asked for an alibi instruction because, according to the original charges, Defendant was in the hospital when the first incident would 7 834 CRIMINAL 1992 have taken place. Again, the Court finds that counsel effectively handled this situation by cross-examining the witness and trying to prove to the jury that reasonable doubt was present based upon the change in testimony by the child. This is an appropriate trial strategy for counsel to take and we find that asking for an alibi instruction or motion for mistrial would not have changed the outcome of this trial. 8