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[U] Commonwealth v. DeMarino

Superior Court of Pennsylvania

February 7, 2014



Appeal from the PCRA Order July 30, 2013, in the Court of Common Pleas of Chester County, Criminal Division, at No(s): CP-15-CR-0001914-2009.




Betsy R. DeMarino[1] (Appellant) appeals from the July 30, 2013 order which denied her petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

On January 1, 2009, Appellant was arrested on suspicion of drunk driving. She was transported to Chester County Hospital, where a blood draw was performed by Nurse James Gadebusch (Gadebusch). Appellant was found to have a blood alcohol content (BAC) of 0.198%. As a result, Appellant was charged with driving under the influence (general impairment) and driving under the influence (highest rate of alcohol).[2]

Appellant proceeded to a jury trial on November 9, 2009. Appellant's first trial ended in a mistrial. Following her second trial, on January 28, 2011, the jury found Appellant guilty of the aforementioned charges. On March 8, 2011, Appellant was sentenced to 15 days of incarceration followed by three years of probation. Appellant filed a direct appeal, and her judgment of sentence was affirmed by a panel of this Court on December 7, 2011. Commonwealth v. DeMarino, 40 A.3d 185 (Pa.Super. 2011) (unpublished memorandum). Appellant then filed a petition for allowance of appeal with our Supreme Court, which was denied on March 21, 2013. Commonwealth v. DeMarino, 63 A.3d 1243 (Pa. 2013).

On April 11, 2013, Appellant timely filed a counseled PCRA petition. On July 3, 2013, the PCRA court gave Appellant notice of its intent to dismiss her PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a response to this notice on July 23, 2013. Nonetheless, the PCRA court dismissed Appellant's PCRA petition on July 30, 2013. Appellant timely filed a notice of appeal. The PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant timely complied.

Appellant now raises the following issue on appeal.

Trial courts may deny hearings where a PCRA claims [sic] are patently frivolous and the issues have no trace of support— either in the record or from other evidence. Here, [Appellant] raises an arguable issue: her trial counsel failed to introduce textual materials to buttress, and explain, expert testimony. Where this claim has support in the record, did the trial court improperly deny [Appellant's] PCRA petition without the benefit of an evidentiary hearing?

Appellant's Brief at 4 (emphasis in original)

We consider Appellant's argument mindful of the following.

On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotations and citations omitted). We note that "[a] PCRA petitioner is not entitled to an evidentiary hearing as a matter of right, but only where the petition presents genuine issues of material fact. A PCRA court's decision denying a claim without a hearing may only be reversed upon a finding of an abuse of discretion." Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. 2011) (citations omitted).

Instantly, Appellant argues that her trial counsel was ineffective for failing to introduce "texts, reference materials, peer-reviewed studies, and other academic treatises to establish, and thus give greater weight" to the testimony of Appellant's expert witness at trial, Dr. Alfred E. Staubus (Staubus). Appellant's Brief at 9. The applicable principles of law are as follows.

The law presumes that counsel is effective and the burden of proving otherwise rests with Appellant. In order to establish a claim of ineffective assistance of counsel, Appellant must demonstrate by a preponderance of evidence that (1) the underlying claim has substantive merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) that Appellant suffered prejudice as a result of that counsel's deficient performance. In reviewing counsel's stewardship, we do not employ a hindsight evaluation of the record to determine whether other alternatives were more reasonable. Rather, counsel will be deemed to be effective so long as the course chosen by counsel had some reasonable basis designed to effectuate his or her client's interests. Also, when it is clear that the party asserting a claim of ineffectiveness has failed to meet the prejudice prong, the claim may be dismissed on that basis alone without a determination of whether the first two prongs of the ineffectiveness standard have been met.

Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005) (citations omitted). "To establish the prejudice prong, the petitioner must demonstrate that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's ineffectiveness." Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013) (citing Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012)).

Appellant's argument stems from her testimony at trial that Gadebusch had difficulty performing her blood draw, and that Gadebusch stuck her repeatedly in her arm and hands without changing the needle he was attempting to use. N.T., 1/28/2011, at 567-68. Staubus testified, via videotaped deposition, that sticking Appellant multiple times without changing the needle may have skewed the results of her BAC test, as this would increase "contamination potential" and that "there is chances [sic] … if there was contamination … for the microbes that are able to ferment glucose to ethanol to have some of that occur." N.T., 1/27/2011, at 37. In contrast, Gadebusch testified that it was his routine practice to change needles every time he attempted to draw blood, and that he did not recall doing anything inconsistent with his routine practice while drawing blood from Appellant. N.T., 1/25/2011, at 186, 193. Gadebusch insisted that "I would have never and will never use a needle more than once." Id. at 193; see also id. at 202-04 ("I don't know how clear I can get, sir, about the reusing of the needle. This will be the fourth attempt in asking me the same question. I always use a new needle for a needle stick.").

Appellant now argues that, had trial counsel employed various forms of academic literature in support of Staubus's testimony at trial, the jury would have acquitted her based upon possible blood sample contamination. Appellant's Brief at 9-10, 13-16. Appellant argues that these materials could "provide Dr. Staubus the opportunity to fairly explain the basis for his reasoning, " and directs our attention to Aldridge v. Edmunds, 750 A.2d 292 (Pa. 2000). Appellant's Brief at 13-14. In that case, our Supreme Court observed that statements in academic literature, so-called "learned treatises, " are generally inadmissible as hearsay under the Pennsylvania Rules of Evidence. Aldridge, 750 A.2d at 296-97 (quoting the comment to Pa.R.E. 803(18), which provides that "Pennsylvania does not recognize an exception to the hearsay rule for learned treatises"). However, the Court acknowledged certain exceptions to this general rule, and offered the following discussion of when learned treatises may be admissible during direct examination of an expert.

There is no question that if published material is authoritative and relied upon by experts in the field, although it is hearsay, an expert may rely upon it in forming his opinion; indeed, it would be unreasonable to suppose that an expert's opinion would not in some way depend upon the body of works preceding it. Pennsylvania courts have thus permitted, subject to appropriate restraint by the trial court, limited identification of textual materials (and in some circumstances their contents) on direct examination to permit an expert witness to fairly explain the basis for his reasoning. Since, however, the purpose for which treatises may be referenced on direct examination is generally limited to explaining the reasons underlying the opinion, the trial court should exercise careful control over their use to prevent them from being made the focus of the examination. Additionally, the trial court should issue appropriate limiting instructions.

Id. at 297 (citations and footnotes omitted); see also Hyrcza v. West Penn Allegheny Health System, Inc., 978 A.2d 961, 976 (Pa.Super. 2009) (discussing Aldridge).

Based on Aldridge, the PCRA court concluded that "an attorney's failure to introduce [learned treatises] could theoretically support a claim of ineffective assistance." PCRA Court Opinion, 10/14/2013, at 17. Nonetheless, the court determined that Appellant was not entitled to relief in the present matter because she "cannot establish the prejudice prong of the test for ineffectiveness[.]" Id. at 19. The PCRA court explained its reasoning as follows.

[Appellant] claims that her counsel was ineffective for failing to introduce literature that would corroborate her trial expert's testimony that proper phlebotomy practices prohibit the use of one needle for multiple punctures and require that the venipuncture site be sterilized with a non-alcoholic swab prior to the draw. There was really no dispute at trial that this testimony represented an accurate assessment of proper phlebotomy principles. The dispute centered on whether Nurse Gadebusch followed them. Nurse Gadebusch testified adamantly that he only used one needle per puncture and that he always cleaned the puncture site with a non-alcoholic sterilizer prior to making the stick. [Appellant] testified that Nurse Gadebusch punctured her skin multiple times with the same needle. She couldn't remember whether Nurse Gadebusch sterilized the sites prior to each stick. The conflict arose between the testimony of Nurse Gadebusch and the testimony of [Appellant]. [Appellant's] expert was not present at the time of the blood draw and did not observe either the actions of the [Appellant] or Nurse Gadebusch at any relevant time. Even if the articles suggested by [Appellant] were introduced at trial, it would not have made it any more or less likely that Nurse Gadebusch did or did not in fact follow the uncontested proper practices outlined therein. The issue essentially boils down to a credibility determination between the testimony of Nurse Gadebusch and the testimony of [Appellant] as to Nurse Gadebusch's actual factual compliance with these apparently universally accepted phlebotomy practices, and there is no learned treatise that can help a jury resolve that question.

PCRA Court Opinion, 10/14/2013, at 17-18.

We agree with the well-reasoned opinion of the PCRA court, and we conclude that there simply is not "a reasonable probability that the outcome of the proceedings would have been different, " Elliott, 80 A.3d at 427, had trial counsel attempted to employ learned treatises during Staubus's direct examination. Gadebusch admitted freely that needles that have been used in an unsuccessful blood draw "need to be discarded because they are contaminated, " N.T., 1/25/2011, at 213, and Staubus's opinion in this regard was not in question. As Appellant cannot establish prejudice, the PCRA court did not err by denying her an evidentiary hearing and dismissing her PCRA petition. We therefore affirm the order of the PCRA court.

Order affirmed.

Judgment Entered.

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