Com. v. Rhodes, B.
469 MDA 2016
| Pa. Super. Ct. | Jan 12, 2017Background
- Barry Lee Rhodes was convicted by a jury in 2011 of multiple sexual offenses involving two minor great‑nieces and was sentenced to an aggregate 21 to 42 years; one indecent‑assault count was later vacated by the PCRA court.
- Rhodes filed a timely pro se PCRA petition (2013); counsel filed an amended petition and the PCRA court held a hearing in July 2015, issuing an order on November 3, 2015 denying most relief.
- Due to counsel office oversight, Rhodes missed the appeal deadline and filed a second PCRA petition seeking reinstatement of his appellate rights; the PCRA court reinstated his right to appeal under Commonwealth v. Bennett (counsel abandonment doctrine).
- Rhodes argued trial counsel was ineffective for (1) not objecting to alleged prosecutorial statements of personal opinion and not requesting curative instructions; (2) not objecting to portions of Dr. Cathy Hoshauer’s testimony (including hearsay identifying Rhodes and testimony about a third sibling and the question “who told first?”); and (3) failing to effectively impeach a victim with prior inconsistent statements.
- The PCRA court found trial counsel’s conduct fell within reasonable strategic choices, held most objections lacked arguable merit or were harmless (victim testified and was cross‑examined; some prior inconsistent statements benefitted defense), and denied relief; this Court affirmed.
Issues
| Issue | Rhodes' Argument | Commonwealth/Trial Counsel Argument | Held |
|---|---|---|---|
| 1. Prosecutor’s alleged personal‑opinion remarks (opening/closing) and failure to seek curative instruction | Prosecutor expressed personal belief that Rhodes was a liar; counsel ineffective for not objecting/asking for curative instruction | Prosecutor’s remarks summarized evidence and were rhetorical; counsel reasonably declined to object; remarks lacked arguable merit for objection | Court held remarks were permissible argument from evidence; ineffective‑assistance claim lacked arguable merit |
| 2. Admissibility of Dr. Hoshauer’s hearsay statements (medical‑diagnosis exception) and identification evidence | Counsel ineffective for not objecting to hearsay and to testimony identifying Rhodes and referencing a third sibling and “who told first” | Statements to Dr. Hoshauer were for medical diagnosis under Pa.R.E. 803(4) and thus admissible substantively; identification portion should have been objected to but was cumulative because victim testified and was cross‑examined; mention of third sibling and “who told first” not shown to be prejudicial | Court held Rule 803(4) admission proper; any failure to object to identification was harmless; no prejudice shown from third‑sibling or "who told first" references |
| 3. Failure to impeach victim K.L.E. with prior inconsistent statements | Counsel ineffective for not rigorously impeaching K.L.E. with prior statements to Trooper Koch and others | Counsel re‑called K.L.E., elicited inconsistency about a cousin witness and produced the cousin; other inconsistencies came in through Dr. Hoshauer; counsel reasonably avoided aggressive cross‑examination of a young trauma witness | Court held counsel had reasonable strategic basis; substantial impeachment occurred; no prejudice shown |
| 4. Procedural jurisdiction to reinstate appeal after counsel oversight | Rhodes asserted counsel abandonment justified nunc pro tunc relief and reinstatement | Commonwealth did not oppose; PCRA court relied on Bennett requiring pleading and proof of counsel abandonment and diligence | Court accepted reinstatement under Bennett; appellate jurisdiction proper |
Key Cases Cited
- Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (second PCRA petition timely when counsel abandons client and petitioner shows diligence)
- Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011) (prosecutor may not state personal opinion of guilt or witness credibility; may argue facts and urge conviction)
- Commonwealth v. Robinson, 877 A.2d 433 (Pa. 2005) (prosecutorial remarks reviewed in context; misconduct requires unavoidable prejudice)
- Commonwealth v. Chmiel, 889 A.2d 501 (Pa. 2005) (oratorical flair not misconduct where argument is based on evidence)
- Commonwealth v. Bridges, 886 A.2d 1127 (Pa. 2005) (standard for proving ineffective assistance under PCRA)
- Commonwealth v. Fink, 791 A.2d 1235 (Pa. Super. 2002) (statements admissible under medical‑diagnosis exception may be used substantively)
- Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002) (prosecutorial misconduct requires prejudice from comments)
- Commonwealth v. Carter, 643 A.2d 61 (Pa. 1994) (prosecutorial comments must be supported by evidence)
- Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009) (appellate standard for review of PCRA court findings)