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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
HEATHER K. HOUSEWEART,                      :
                                            :
                          Appellant         :     No. 474 MDA 2015

                   Appeal from the PCRA Order March 4, 2015
               In the Court of Common Pleas of Lycoming County
               Criminal Division No(s).: CP-41-CR-0001036-2011

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 23, 2015

        Appellant, Heather K. Houseweart, appeals from order entered in the

Lycoming County Court of Common Pleas, dismissing her first petition filed

pursuant to the Post Conviction Relief Act1 (“PCRA”).          Appellant avers

counsel was ineffective for failing to call a material witness at trial.   We

affirm.

        Following a jury trial, Appellant was convicted of aggravated and

simple assault. These charges arose from an altercation between Appellant

and Jill Suzanne Kinley (“Victim”) in the bathroom of the Eagles Club, a bar

in Williamsport on March 26, 2011. N.T., 3/1/12, at 23, 26.



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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      On June 4, 2012, Appellant was sentenced to three to six years’

imprisonment.    On April 4, 2013, Appellant filed a PCRA petition.          On

September 12, 2013, the PCRA petition was dismissed based upon counsel’s

failure to comply with the June 27, 2013 order of the PCRA court. Order,

9/12/13. On September 30, 2013, Appellant filed a pro se notice of appeal.

On April 30, 2014, this Court vacated the September 12, 2013 order and

remanded for the appointment of new counsel.              Commonwealth v.

Houseweart, 1760 MDA 2013 (unpublished memorandum) (Pa. Super. Apr.

30, 2014).

      On July 16, 2014, the PCRA court entered an order stating that

because the notes of testimony from the trial were unavailable, “it is the

[c]ourt’s reluctant conclusion that the only realistic way to achieve justice in

this matter is to order a new trial.    The [c]ourt acknowledges that this is

being raised sua sponte and would like input from all parties, including the

Commonwealth and new PCRA counsel.” Order, 7/16/14. On September 3,

2014, the PCRA court entered an order directing defense counsel to file

either an amended PCRA petition or a letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988), within thirty days of the date of the order because

the notes of testimony had been located. Order, 9/3/14. Counsel filed an

amended PCRA petition on October 6, 2014. On March 4, 2015, the PCRA

petition was dismissed. This timely appeal followed. Appellant filed a timely



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court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The PCRA court filed a responsive opinion.

        Appellant raises the following issue for our review:

           The trial court erred by denying Appellant a new trial due
           to trial counsel’s failure to call Doctor John H. Bailey who
           would have offered testimony key to the defense’s
           argument at trial on the issue of causation and specifically
           on whether the victim’s injuries were consistent with an
           accidential [sic] fall brought on in part by the victim’s
           extreme intoxicated state consistent with Dr. Bailey’s
           witness statement filed in the above matter.

Appellant’s Brief at 4. Appellant argues that Dr. Bailey could have rendered

an opinion on causation and potential causes of the injuries sustained by

Victim. Id. at 14. Dr. Bailey “performed an open reduction and fixation on

[V]ictim’s left both-bone forearm fracture . . . .”      Id.    Appellant contends

causation was the key issue at trial because Appellant maintained Victim’s

injuries were caused after Appellant left the bathroom. Id. at 15. Appellant

claims counsel acknowledged her ineffectiveness in the Witness Certification

that she filed pursuant to Pa.R.Crim.P. 902(A)(15). 2          Id. at 16.    Counsel


2
    Rule 902(A)(15) provides:

           (A) A petition for post-conviction collateral relief shall bear
           the caption, number, and court term of the case or cases
           in which relief is requested and shall contain substantially
           the following information:

                                    *    *    *

           (15) if applicable, any request for an evidentiary hearing.
           The request for an evidentiary hearing shall include a



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stated: “I also did not subpoena Dr. John H. Bailey who performed surgery

on [Victim] on March 27, 2011 and who would have also been able to offer

testimony concerning the causation of [Victim’s] injuries, her level of

intoxication and its effects on her physical well being and memory of the

evening’s events.” Id. at 17, (quoting Witness Certification, 10/6/14, at ¶

13).

       This Court has stated:

           Our standard and scope of review for the denial of a
         PCRA petition is well-settled.

            [A]n appellate court reviews the PCRA court’s
            findings of fact to determine whether they are
            supported by the record, and reviews its conclusions
            of law to determine whether they are free from legal
            error. The scope of review is limited to the findings
            of the PCRA court and the evidence of record, viewed
            in the light most favorable to the prevailing party at
            the trial level.

                                 *    *    *

         . . . Counsel is presumed effective, and to rebut that
         presumption, the PCRA petitioner must demonstrate that
         counsel’s performance was deficient and that such
         deficiency prejudiced him.   In Pennsylvania, we have
         refined the [Strickland v. Washington, 466 U.S. 668
         (1984),] performance and prejudice test into a three-part
         inquiry. Thus, to prove counsel ineffective, the petitioner

         signed certification as to each intended witness, stating the
         witness’s name, address, and date of birth, and the
         substance of the witness’s testimony. Any documents
         material to the witness’s testimony shall also be included
         in the petition . . . .

Pa.R.Crim.P. 902(A)(15).



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        must show that: (1) his underlying claim is of arguable
        merit; (2) counsel had no reasonable basis for his action or
        inaction; and (3) the petitioner suffered actual prejudice as
        a result. If a petitioner fails to prove any of these prongs,
        his claim fails. . . .      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.

                                  *    *    *

           [A] defendant [raising a claim of ineffective
           assistance of counsel] is required to show actual
           prejudice; that is, that counsel’s ineffectiveness was
           of such magnitude that it “could have reasonably had
           an adverse effect on the outcome of the
           proceedings.”

Commonwealth v. Charleston, 94 A.3d 1012, 1018-19 (Pa. Super.)

(some citations omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

     To establish counsel’s ineffectiveness for failure to call a witness, a

petitioner must demonstrate that:

        (1) the witness existed; (2) the witness was available; (3)
        counsel was informed of the existence of the witness or
        counsel should otherwise have known of him; (4) the
        witness was prepared to cooperate and testify for
        Appellant at trial; and (5) the absence of the testimony
        prejudiced Appellant so as to deny him a fair trial. A
        defendant must establish prejudice by demonstrating that
        he was denied a fair trial because of the absence of the
        testimony    of    the     proposed     witness.        Further,
        ineffectiveness for failing to call a witness will not be found
        where a defendant fails to provide affidavits from the
        alleged witnesses indicating availability and willingness to
        cooperate with the defense.




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Commonwealth v. O'Bidos, 849 A.2d 243, 249 (Pa. Super. 2004)

(citations omitted).

      Instantly, the PCRA court opined:

         Medical evidence was introduced to show that [Victim]
         suffered a fracture of her left ulna and radius as well as
         ligament tears in her left knee.         The Commonwealth
         presented testimony that [Appellant] inflicted the injuries
         on [Victim. Appellant] testified, however, that although
         there was some pushing back and forth with the bathroom
         door, [Victim] was still standing when [Appellant] left the
         bathroom and had not been injured. [Appellant] asserted
         that the injuries were the result of a fall.

            In her petition, [Appellant] asserted that trial counsel
         was ineffective for failing to call as a witness John Bailey,
         M.D., who performed the surgery on [Victim’s] arm. The
         court found no ineffectiveness as it believed Dr. Bailey’s
         testimony, as contained in the witness certification filed
         January 6, 2015, would have been more favorable to the
         prosecution than the defense.              According to the
         certification, Dr. Bailey would have testified that “it is
         certainly not outside of the realm of possibility” that
         [V]ictim’s injuries were caused by a fall rather than from
         the alleged assault, but that “it is unlikely that a simple fall
         would result in this severity of injuries to both the knee
         and forearm.” The court believed such testimony to be too
         speculative to support [Appellant’s] request for a hearing.

PCRA Ct. Op., 3/31/15, at 1-2. Additionally, in the witness certification, Dr.

Bailey stated

         I don’t have any specific recall of this patient, but from
         reading my history and physical, operative note, and
         discharge summary, the best that I can tell you is that
         [Victim] reported to me that she was involved in an
         altercation. She sustained fractures of the radius and ulna
         of the left forearm and left knee medial collateral ligament
         and anterior cruciate ligament tears. . . . I would state
         that she was consistent at every step of the process in
         reporting that this was, in fact, an altercation.


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Witness Certification of Doctor John H. Bailey, Jr. in Accordance with

[Pa.R.Crim.P.] 902(A)(15).

      At trial, Victim testified that she had started drinking at the Eagles

Club between 11:30 and noon. N.T., 3/1/12, at 23. She had about eight

mugs of beer prior to the incident. Id. She went to the bathroom between

seven and eight p.m.     Id. at 24.    When she exited the bathroom stall,

Melissa Palmer and Appellant were in the bathroom. Id. at 25. Appellant

started yelling and Victim told her “[t]he only thing I want to hear out of you

is that you have the money that you owe me.” Id. Victim stated:

             I was drying my hands and I backed up so that another
         girl could get to the paper towels and that put me
         basically, if you would open the door, behind the door of
         the restroom.

                                 *     *    *

            I remember being slammed with the door multiple
         times. I remember hitting the floor. I got back up and I
         started to be slammed with the door again and I was
         knocked unconscious. I came to on the floor and that’s
         when Melissa Palmer asked me if I hit my head, and I
         looked up at my arm and saw that my bones were sticking
         out of my arm and I couldn’t get up because I couldn’t
         move my leg.

Id. at 25-26.

      At trial, the Commonwealth read from Victim’s medical records. Id. at

29. The Commonwealth stated:

            If the manager of the health records department for
         Susquehanna Health was here today she would testify that
         at 8:59 p.m. on March 26, 2011 [Victim] arrived at the


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          Williamsport Hospital.   Upon arrival [she] had an IV
          inserted and morphine was administered. At 10:45 p.m. a
          long arm splint was applied to [her] left arm, elbow,
          forearm, wrist, and hand. The splint was secured with two
          four-inch ace wraps. At 11:25 [she] attempted to stand
          and bear weight and was unable to bear weight on her left
          leg.

Id. at 29.

      The medical records indicated that on March 27th, Victim had surgery

on her arm described as “open reduction and internal fixation, left radius and

ulnar fracture.” Id. at 34. She had surgery for her left knee at Geisinger

Medical Center.     Id. at 35, 37.         “The procedure involved ligament

reconstruction.” Id. at 37. Following surgery, her leg was in a brace and

she was unable to walk for ten weeks.         Id. at 36.   Victim did physical

therapy at Williamsport Hospital three times a week for four months. Id. at

39, 40.

      Shannon Louise Wanamaker, a bartender at the Eagles Club, testified

that she worked on the day of the incident from 10:30 a.m. until 6:30 p.m.

Id. at 47. She saw Victim on the floor of the bathroom and asked her what

happened. Id. at 48. Victim told her Appellant “beat the shit out of me.”

Id.

      Erin Dailey, a paramedic, treated Victim as a result of an emergency

dispatch from the Eagles Club regarding an assault victim.      Id. at 61-62.

She arrived at 8:15 p.m.      Id. at 65.   Victim told her that she had been

drinking since one o’clock.    Id. at 68.     When asked if Victim appeared



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intoxicated, Ms. Dailey stated that “[s]he was anxious, so that can be from

pain. It could be from drinking. It’s really hard to tell how much is from

what.” Id.

     Melissa Palmer testified that she was in the bathroom stall at the time

of the incident. Id. at 72. Palmer “came out of the stall and [Victim] was

on the floor trying to stand up and [Appellant] was over her yelling

profanities.” Id. She observed the following interaction between Victim and

Appellant:

           Like, she would say─like, she was saying, you know,
        you’re not so “F” ing tough now, are you, “B?” And
        [Victim] stood up and she looked really dazed and kind of
        confused, and [Appellant] grabbed the door to leave the
        restroom and when she opened it she pinned [Victim] in
        between the door and the wall. [Victim’s] arms were up
        against wall [sic] and [Appellant] took her full body and
        slammed into her in this door five or six times, saying,
        you’re not so tough now, are you, “B”? And you want to
        keep running your mouth, this is what happens.
        [Appellant] walked out of the bathroom.

                                 *    *    *

            When the door was closing [Victim] turned and when
        she went to take a step she fell to the floor, and I thought
        she hit her head or something because I heard like a─that
        wap sound, so I leaned over and said, oh, my God, did you
        just hit your head? And she said, I think I broke my arm.
        She lifted her arm up and it was like─the bones were
        sticking out and stuff.

Id. at 72-73, 74.

     Walter Zuravensky, Jr., “was at the Eagles Club shooting pool” with

Appellant on the date of the incident. Id. at 83, 84. Appellant told him that



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she owed Victim money and Appellant said “I’m tired of her giving me all

that shit and I should just punch her.” Id. at 87. After he finished shooting

pool, he went to go to the bathroom and he saw Appellant. Id. Appellant

told him she “just knocked that fucking bitch out.” Id.

      Patrolman   Jimmie   William    Rodgers     of    the   Williamsport   Police

Department testified he “was dispatched to the Eagles Club for a fight that

had occurred.” Id. at 99. Victim was lying on the floor in the restroom with

a visibly broken arm “complaining of an injury to her left knee.” Id. at 100.

She was “highly intoxicated” in his opinion.      Id.   Melissa Palmer told him

when she came out of the bathroom “she saw [Appellant] slam the door

open against [Victim], saw [Victim] drop to the floor and heard [Appellant]

call her a bitch as she exited the bathroom.” Id. at 100-01.

      Appellant testified that as she “was trying to get out of the bathroom,

[Victim was] pushing the door shut on [her].” Id. at 127. “[W]e were both

fighting, her pushing the door to keep me in and me pushing the door to get

out.” Id. at 129. Appellant stated she “had absolutely nothing to do with

them [sic] injuries. She was fine when I walked out of that bathroom. She

was standing and there was no blood.”         Id. at 137.     Appellant never saw

Melissa Palmer in the bathroom.       Id. at 140.        According to Appellant,

Palmer’s testimony was false. Id.

      We find Appellant has not satisfied the prejudice prong of the

ineffective assistance of counsel test.   See Charleston, 94 A.3d at 1019.



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Appellant has not shown that the absence of the testimony of Dr. Bailey

prejudiced her so as to deny her a fair trial. See O’Bidos, 849 A.2d at 249.

Therefore, her ineffective assistance of counsel claim for failure to call a

witness is without merit.   See id.   The evidence of record supports the

determination of the PCRA court. See Charleston, 94 A.3d at 1019.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/23/2015




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