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Tyma v. District Attorney of Allegheny County

United States District Court, W.D. Pennsylvania

December 27, 2019

THOMAS TYMA, Petitioner,
v.
DISTRICT ATTORNEY OF ALLEGHENY COUNTY and ATTORNEY GENERAL COMMONWEALTH OF PENNSYLVANIA, Respondents.

          OPINION AND ORDER

          Maureen P. Kelly Magistrate Judge

         Thomas 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.

         For the 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.

         I. FACTUAL BACKGROUND

         The Pennsylvania Superior Court in its December 18, 2013 Memorandum, recounted the factual history of the case as follows:

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 different rheumatologist.
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 exams.
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 trial.
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 267- 268.
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. Tyma's arrest.

Cmmw. v. Tyma, 1047 WDA 2012, 2013 WL 11246163 at *1-5 (Pa. Super. Dec. 18, 2013) (footnotes omitted).

         II. PROCEDURAL HISTORY

         A. State Court

         The 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 as follows:

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.

         On 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).

         The Superior Court affirmed the denial of PCRA relief, addressing the claims raised on the merits.

         After 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.

         B. Federal Court

         Petitioner 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 ...

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