United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Maureen P. Kelly Magistrate Judge
Tyma (“Petitioner”), has filed this counseled
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (the “Petition”), ECF No. 1, seeking
to attack his state court convictions for multiple counts of
Indecent Assault and Harassment in connection with his
conducting of physical examinations of patients in his
rheumatology medical practice, during which examinations, he
was found to have improperly touched the patients.
reasons that follow, the Petition will be denied because none
of the grounds for relief merits the grant of federal habeas
relief. Furthermore, because jurists of reason would not find
this disposition of the Petition debatable, a certificate of
appealability will also be denied.
Pennsylvania Superior Court in its December 18, 2013
Memorandum, recounted the factual history of the case as
Dr. Tyma is a rheumatologist who has practiced in Allegheny
County since 1993. Between January 11, 2011, and May 24,
2011, the Commonwealth filed nine separate criminal
complaints against Dr. Tyma relating to his inappropriate
touching of 21 former patients during medical exams.
Seventeen of those former patients testified against Dr. Tyma
at trial. In almost every case, the complainant testified
that during a routine heart exam, Dr. Tyma touched her breast
in a manner unrelated to the exam. In every instance, save
one, the inappropriate touching occurred when the patient was
alone with Dr. Tyma. A review of the testimony is necessary
for our disposition of the issues raised on appeal.
Thirteen of Dr. Tyma's former patients testified during
the first day of trial. L.S. testified that she had only one
appointment with Dr. Tyma. After he listened to her heart
with his stethoscope, he asked her if she had a breast exam
recently, to which she replied, “yes; I just had
one.” N.T., 3/12-19/2012, at 11. She explained that
“at that time his hand was already groping me around
each breast, over top of my sweater.” Id.
Although she made another appointment with Dr. Tyma before
she left the office, she cancelled the appointment the next
day, and never returned.
C.W. saw Dr. Tyma “five or six times.”
Id. at 24. She testified that during most of the
exams, she was not alone with Dr. Tyma because a
physician's assistant was in the room. However, during
the one visit she was alone with Dr. Tyma, he asked her to
lie down on the exam table and then “took his right
hand inside [her] blouse and covered [her] left breast”
over her bra. Id. at 27. C.W. testified that she
returned for one follow-up appointment, but was not alone
with Dr. Tyma during that visit. She never returned again.
R.C. testified that she only met with Dr. Tyma on one
occasion. Although she complained of pain in her neck and
jaw, she testified that Dr. Tyma “proceeded to touch
[her] body, grope both of [her] breasts, put his hand down
[her] back side and touch [her] butt.” Id. at
38. She explained that he “literally cupped [her
breasts] and rubbed and massaged around them and kept asking
if there was any pain and [she] said no.” Id.
at 39. She testified that, although a female employee was
present in the room during the exam, the employee was taking
notes and “never picked her head up.”
Id. at 41. R.C. decided to follow-up with a
E.G. was the first former patient to lodge a criminal
complaint against Dr. Tyma. She testified that she had two
appointments with Dr. Tyma. During the first appointment, she
saw Dr. Tyma only briefly, and he did not perform a physical
exam. However, during the second appointment, while Dr. Tyma
was listening to her heart, “[h]e had his stethoscope
on [her] chest and then he slid his hand inside [her] bra and
grabbed [her] left breast and squeezed it.”
Id. at 54. He then asked her to stand up and bend
over, ostensibly so he could check her spine. E.G. testified
that he asked her to bend over two or three times,
“[a]nd then after [she] stood up, he took his hands and
rubbed them down [her] back and on [her] behind.”
Id. at 55. Although she made a followup appointment
on her way out, she testified that she never intended to keep
it. E.G. reported the incident to the police two days later.
Id. at 56.
B.S. testified that Dr. Tyma inappropriately touched her on
two occasions. During the first visit, he put his left hand
under her shirt and grabbed her breast over her bra, while he
held his stethoscope in his right hand. Id. at
69-70. B.S. further testified that during her second visit
with Dr. Tyma, he, once again, grabbed her left breast with
his left hand as he held his stethoscope in his right hand.
Id. at 73. She did not return to his office again.
R.T. was referred to Dr. Tyma by her brother, who was also
his patient. She testified that during her first appointment,
a physician's assistant remained in the room the entire
time. However, during the follow-up exam, she was alone in
the room with Dr. Tyma. R.T. testified that after he listened
to her heart and lungs, he asked her to lie down on the table
“and he lifted up [her] sweater and he felt both of
[her] breasts” over her bra. Id. at 85-86.
Although she made a follow-up appointment before she left,
she never returned to Dr. Tyma's practice.
M.J.S. testified that she was a patient of Dr. Tyma's for
“a good ten years.” Id. at 97. She had
appointments with either him or a physician's assistant
every three to six months, and never experienced anything
inappropriate. However, M.J.S. testified that during her
“last three or four visits” with Dr. Tyma,
“[w]hen he would listen to [her] heart beat, he would
kind of roughly grab the left breast and listen to [her]
heart [.]” Id. at 100. The incidents occurred
over her clothing. She explained why she kept returning to
Dr. Tyma after the first incident:
Because I wasn't sure and he was my doctor and I trusted
him. And I knew him for all these years. And I wasn't
sure. I was very embarrassed.
Id. at 101.
F.F. was referred to Dr. Tyma by her primary care physician.
She testified that during her first appointment, Dr. Tyma
asked her to lie down on the exam table, and pull up her
sweater so that he could check her heart. When she did, her
breast was exposed from her bra. Dr. Tyma then put his left
hand on her right shoulder, and his right hand on her left
breast. F.F. explained that he then brought his left hand
down and “swiped down by [her] pelvic area.”
Id. at 111. She also testified that while this was
occurring, Dr. Tyma “was pressing his groin up against
[her] right arm.” Id. at 115. Although F.F.
returned to Dr. Tyma for two follow-up appointments, she
testified that nothing inappropriate occurred during those
J.S. testified that during her initial consultation with Dr.
Tyma, he did not perform a physical exam. However, during a
follow-up visit, when she was alone with Dr. Tyma in the exam
room, “he put his hand inside of [her] bra[, a]nd then
he told [her] he didn't need to see [her] again.”
Id. at 129. J.S. explained that Dr. Tyma was not
performing a physical exam at that time, but that he simply
touched her breasts. Id. at 133.
The next complainant, L.H., testified that while she was in
the hospital, treating for pancreatitis, Dr. Tyma examined
her a few times because her doctor requested a rheumatologist
consult. During one of his visits, he was leaning over her to
examine a skin inflammation near her collarbone. Although
there was another patient in the room, L.H. testified that
the curtain surrounding her bed was closed. Id. at
143. She explained that when Dr. Tyma “went to go stand
up, he grabbed [her] left breast” over her hospital
gown. Id. at 144-145. L.H. testified that she
believed his actions were intentional because “it was a
grab” and “there was really no reason for him to
grab [her].” Id. at 150.
U.G. tesitified [sic] that she was a patient of Dr.
Tyma's for many years. The first time he touched her
inappropriately, his whole hand touched her breast while he
was listening to her heart with a stethoscope. She dismissed
it as an accident. Id. at 154. However, the second
time it happened, and he put his entire hand over her breast,
she realized it was not an accident. Id. at 155-157.
U.G. testified that after the second incident, she decided
not to continue treating with him.
G.J.S. was another longtime patient of Dr. Tyma's. During
one of her last visits, however, Dr. Tyma had difficulty
putting his stethoscope under her bra because it was very
snug. She testified that once it was in place, several
fingers of his hand, that was holding the stethoscope,
“were going up and down in a caressing manner on the
inner portion of [her] breast.” Id. at 169.
Then, Dr. Tyma “cupped” her breast with his other
hand and “was squeezing [the] breast in an abnormal
manner.” Id. G.J.S. testified that she had to
return to Dr. Tyma for one more appointment so that she could
obtain a refill for a prescription. She explained that
“[t]here was not inappropriate touching during that
visit[, ]” but it was “awkward.”
Id. at 173. G.J.S. also explained that she was
hesitant to report the encounter because she was in
pharmaceutical sales, and knew Dr. Tyma on a professional
level, as well as being his patient. Id. at 179.
D.M. was the final complainant to testify on the first day of
D.M. was originally a patient of another doctor in the
practice, but was transferred to Dr. Tyma after her former
doctor left. She testified that during her initial visit with
Dr. Tyma, Dr. Tyma was listening to the right side of her
chest with a stethoscope, when he touched her left breast
under her bra with his other hand. Id. at 187.
During the same appointment, she required an injection in her
left hip. Dr. Tyma proceeded to rub the area for five to ten
minutes, ostensibly to rub the medication into the muscle.
Id. at 189- 190. While he was doing so, Dr. Tyma
said to her, “you do trust me, ” to which she
replied, “yes; you are my doctor.” Id.
at 190. D.M. testified that his comment “didn't
feel right to [her]” and that she “made up her
mind in that room that day [she] was not going to follow up
with him again.” Id.
The remaining four complainants testified on the second day
of trial. T.J. testified that she had only one consultation
appointment with Dr. Tyma. After she had some lab work done,
she met with Dr. Tyma in an exam room. T.J. testified that
while Dr. Tyma was questioning her as she laid on the table,
he “just grabbed [her] breast and just kind of massaged
it and then stopped and turned his back to [her] and just
left [her] there.” Id. at 207. She never
returned to his practice
J.M. testified that she first met Dr. Tyma when he consulted
with her while she was in the hospital for an unrelated
issue. She then visited his office for a follow-up exam. J.M.
testified that Dr. Tyma acted inappropriately during three
visits. The first time, after he listened to her heart with a
stethoscope, he placed the instrument around his neck
“and proceeded to lift [her] shirt and ... bra and
started to rub [her] breast.” Id. at 221.
Later during the same exam, while Dr. Tyma was checking her
spine, J.M. testified that he “had [her] bend over and
he took his hand and ran it down [her] spine and proceeded to
lower her pants a few inches and rubbed [her] tail bone and
proceeded to rub [her] buttocks.” Id. at 222.
Although she had no intention of returning to Dr. Tyma's
office, she made another appointment with him about a year
later because she was still in pain, and it would have taken
three to four months to get an appointment with another
rheumatologist. Id. at 223-224. Nothing
inappropriate occurred during the exam. However, as J.M. was
leaving, Dr. Tyma asked her if she was sexually active and if
she was on birth control. He also suggested she tell her
partner “to take it easy with [her] ... or he could
injure [her] joints.” Id. at 227. Six months
later, J.M. had a third appointment with Dr. Tyma. After he
used his stethoscope to check her heartbeat, he, once again,
placed the instrument around his neck, and proceeded
“to put his hand up [her] shirt and put a couple of
fingers down [her] bra and caressed [her] nipple.”
Id. at 228. J.M. never went to see Dr. Tyma again.
A.M. testified that she had about a dozen appointments with
Dr. Tyma beginning in the summer of 2009. During the exams
when she was alone with Dr. Tyma, A.M[.] testified that he
would lift her shirt to listen to her heartbeat with a
stethoscope, and then “would go on both breasts
touching [her bare] nipples.” Id. at 241. She
indicated that “[t]he only time it didn't happen is
when the physician assistant was in the room.”
Id. A.M. also testified that on one or two occasions
after the “heart, breast exam, whatever you want to
call it, ” he examined her stomach and “put his
fingers ... down ... where [her] pubic hair is.”
Id. at 243. She explained that although she
“definitely questioned” what he was doing, she
“trusted him as [her] doctor.” Id. at
248. She also testified that she continued to treat with Dr.
Tyma because “everyone claimed he was a good doctor ...
[a]nd he was.” Id. at 249.
Lastly, L.R. testified that she began treating with Dr. Tyma
in the early 2000's after her former rheumatologist left
the practice. She saw him about three times each year. She
explained that during every exam, Dr. Tyma performed a breast
exam, including “skin-to-skin contact ... just like a
gynecologist would do ... rotating around the breast, each
breast.” Id. at 262. Although Dr. Tyma never
explained why he felt it necessary to perform a breast exam,
L.R. thought it was “a little wellness perk to his
treatment.” Id. at 263. However, after she
learned about Dr. Tyma's arrest, and her subsequent
appointments with rheumatologists did not include breast
exams, she “realized [she] might be one of the women
who had been touched inappropriately.” Id. at
All of the complainants, except R.C., testified that the
inappropriate touching occurred only when
they were alone with Dr. Tyma. In fact, several witnesses
testified that Dr. Tyma never touched their breasts when a
physician's assistant was in the room. In almost every
case, the complainant testified the inappropriate touching
occurred for about five to ten seconds. Moreover, the
complainants, all of whom suffered from multiple maladies,
indicated that none of their other doctors had ever touched
their breasts during a heart exam. Further, all of the
complainants, with the exception of E.G[.], first reported
the incident to the police after they learned of Dr.
Cmmw. v. Tyma, 1047 WDA 2012, 2013 WL 11246163 at
*1-5 (Pa. Super. Dec. 18, 2013) (footnotes omitted).
Pennsylvania Superior Court, in its December 1, 2016
Memorandum addressing Petitioner's appeal in the Post
Conviction Relief Act (“PCRA”) proceedings,
adopted the PCRA trial court's opinion as its own.
Cmmw. v. Tyma, No. 1908 WDA 2015, 2016 WL 7017386,
at *4 (Pa. Super. Dec. 1, 2016) (“Accordingly, we find
that the PCRA court's May 12, 2016 opinion
comprehensively discusses and properly disposes of the issues
presented. We, therefore, adopt the PCRA court's opinion
addressing the merits of appellant's claims as our own
for purposes of further appellate review.”). The
Superior Court recounted the state court procedural history
On March 12, 2012, appellant waived his right to a jury and
proceeded to a bench trial. Appellant was represented at
trial by Stanton D. Levenson, Esq. (hereinafter, “trial
counsel”). Following a six-day trial, appellant was
found guilty of 18 counts of indecent assault and 17 counts
of harassment on March 19, 2012. On May 24, 2012, appellant
was sentenced to an aggregate term of 60 days'
imprisonment, followed by one year of county intermediate
punishment and six years of concurrent probation. On June 4,
2012, appellant filed timely post-sentence motions, which
were denied by the trial court on June 28, 2012. Appellant
filed a timely notice of appeal on July 5, 2012. On December
18, 2013, a panel of this court affirmed appellant's
judgment of sentence. See Tyma, 93
A.3d 513. Appellant did not file a petition for
allocatur with our supreme court.
Thereafter, on October 27, 2014, appellant filed a timely
PCRA petition. The Commonwealth filed its answer to
appellant's PCRA petition on March 31, 2015. On May 1,
2015, appellant filed a response to the Commonwealth's
answer. On June 25, 2015, the PCRA court provided appellant
with notice, pursuant to Pa.R.Crim.P. 907(1), of its
intention to dismiss his petition without a hearing.
Thereafter, on November 10, 2015, the PCRA court dismissed
appellant's petition without a hearing. This timely
appeal followed on December 4, 2015. On December 16, 2015,
the PCRA court ordered appellant to file a Rule 1925(b)
statement by February 5, 2016. On February 4, 2016, appellant
complied with the PCRA court's directive and filed a Rule
1925(b) statement spanning 23-pages and raising 29 distinct
claims of ineffectiveness of trial counsel. The PCRA court
filed a comprehensive, 30-page Rule 1925(a) opinion,
accompanied by a three-page appendix, on May 12, 2016.
appeal, appellant raises the following issues for our review:
I. Whether the PCRA Court Erred by Dismissing Appellant's
PCRA Petition Without a Hearing on Trial Counsel's
Ineffectiveness: (A) for Failing to Call Available
Exculpatory Witnesses; (B) for Failing to Impeach
Complainants with Available Exculpatory Evidence; (C) for
Failing to Introduce Exculpatory Evidence, and (D) for
Failing to Obtain Evidence[?]
II. Whether the Cumulative Effect of [Trial] Counsel's
Errors Deprived Appellant of His Sixth Amendment Right to
Effective Assistance of Counsel?
Appellant's Brief at 1.
Id., 2016 WL 7017386, at *1 - 2 (footnote omitted).
Superior Court affirmed the denial of PCRA relief, addressing
the claims raised on the merits.
the Superior Court affirmed the denial of PCRA relief,
Petitioner did not file a Petition for Allowance of Appeal
with the Supreme Court of Pennsylvania.
paid the filing fee and the counseled Petition was filed. ECF
No. 1. In the instant Petition, Petitioner raised three
Grounds for Relief, referred to by Petitioner as
“Claims for Relief”:
[GROUND ONE] The evidence was insufficient under the Due
Process Clause of the U.S. Constitution to support the
verdicts because the evidence failed to prove Petitioner had
indecent contact with his patients without their consent. No.
patient made any verbal response to Dr. Tyma's
examination to hom [sic] or to staff membrs [sic] who were
interviewed by the police. In addition, no ...