Com. v. Rippey, E. (memorandum)

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J-A19016-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. ETHAN W. RIPPEY Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA 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. J-A19016-22 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 -2- J-A19016-22 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). -3- J-A19016-22 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”)] -4- J-A19016-22 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 -5- J-A19016-22 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 -6- J-A19016-22 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 -7- J-A19016-22 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 -8- J-A19016-22 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 -9- J-A19016-22 the victim.” Id.; 42 Pa.C.S. § 5920(b)(3). The court must assess on a caseby-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 - 10 - J-A19016-22 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, - 11 - J-A19016-22 241 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 - 12 - Circulated 11/21/2022 01:46 PM

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