A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Superior Court of Pennsylvania en banc has issued a decision in the case ofCOMMONWEALTH Of Pennsylvania, Appellant v. Sixto MATIAS, Appellee, 9 EDA 2011, 2013 WL 987796, 2013 PA Super 53 (March 14, 2013), a Commonwealth appeal from an Order entered in the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0011362–2007, granting the Post Conviction Relief Act Petition filed by Matias. The Court en banc was composed of Judges FORD ELLIOTTMUSMANNOBENDER,DONOHUESHOGANLAZARUSMUNDYOLSON and WECHT. The OPINION was by Judge MUSMANNO. Judge MUNDY filed a Dissenting Opinion.

Matias was charged with involuntary deviate sexual intercourse, aggravated indecent assault indecent assault and corruption of a minor based on the allegation of a thirteen year old neighbor, R, a friend of Matias’s daughter, K, then eight years old, who claimed that Matias sexually assaulted her on two occasions in the bathroom of the basement of Matias’s home in Philadelphia.

After a jury conviction and no direct appeal, a PCRA petition was filed. The PCRA court held an evidentiary hearing and granted a new trial, holding that Matias received ineffective assistance of trial counsel. Thereafter, the Commonwealth filed this  appeal.

The Commonwealth first challenged the PCRA court’s determination that Matias’s counsel rendered ineffective assistance by failing to call Matias’s daughter, K., as a witness. In support, the Commonwealth disputes the PCRA court’s finding that K.’s testimony would have contradicted the testimony of R., the complainant. K did testify at the PCRA Evidentiary Hearing and denied that Matias did the vile acts that the complainant claimed that Matias did to her. Therefore, since the Commonwealth’s case against Matias rested entirely upon the credibility of R, the PCRA court’s determination that the absence of K’s testimony was so prejudicial as to deny Matias a fair trial was supported by the record. Accordingly, the Commonwealth’s argument was rejected as the Court discerned no error or abuse of discretion by the PCRA court.

The Commonwealth also challenged the PCRA court’s grant of relief based upon counsel’s failure to present photographic evidence regarding the absence of a bathroom in Matias’s basement. The Commonwealth disputed the PCRA court’s finding that the photographs would have negated R.’s credibility.

R testified at trial that a sexual assault by Matias occurred in the bathroom in Matias’s basement. The PCRA Court found that counsel did not investigate the case properly because he did not inspect the Matias’ basement and thus was unaware that there was no bathroom there. Furthermore, Matias gave counsel photographs of their basement, which photographs counsel misplaced. These photographs would have proved that there was no bathroom in the Matias’ basement which would have adversely affected R’s credibility and could have lead to an acquittal.

Judge Musmanno ruled that the record supported the PCRA court’s determination that Matias’s claims had merit, counsel had no reasonable basis for not investigating and presenting this evidence at trial, and that counsel’s dereliction caused Matias prejudice. Therefore, the Superior Court affirmed the Order of the PCRA court.

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