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A Saxton man serving a prison sentence for the sexual abuse of a young relative has lost his appeal in which he contended his trial counsel was ineffective, according to a decision issued last week by the Pennsylvania Superior Court.
Damian Christopher Metz, 26, was found guilty by a Huntingdon County jury in June 2018 of indecent assault of a person less than 13 years of age.
The jury returned a not guilty verdict on the charge of aggravated indecent assault without consent.
Huntingdon County Judge George N. Zanic sentenced Metz to serve 10 to 24 months in prison, and ordered him to register as a sex offender.
Metz presently is an inmate of the State Correctional Institution in Smithfield, Huntingdon County.
The defendant appealed his conviction and sentence, but the appeal was initially rejected by the state Superior Court.
He then filed a post-conviction petition in which he contended his trial counsel erred when he advised him not to take the witness stand in his own defense.
He also claimed his counsel failed to request that the victim in the case, a 4-year-old child, testify at his trial.
The young victim's story instead was presented to the jury by way of a video deposition taken during her visit to a child advocacy center.
The child was asked questions by a forensic interviewer.
Metz, through his appeals attorney Timothy Burns of Ebensburg, argued that the questions posed by the interviewer to the child "were biased and geared towards incriminating him."
Zanic found the Metz trial attorney was not ineffective.
The defense then filed a post-conviction appeal.
A panel of the Superior Court consisting of Judges Jack A. Panella, Maria McLaughlin and James G. Collins in its opinion stated, "We agree that Metz has failed to prove ineffectiveness."
Metz stated he told his counsel he wanted to testify, but counsel refused to let him, stating that his taking the stand would "ruin a good day in court."
Counsel, during the hearing before Zanic, stated he advised Metz not to testify because Metz was concerned that on cross-examination a prior conviction would be introduced.
Zanic also noted that Metz related that he had understood his right to testify, that it was his decision to make and that he had enough time to discuss the issue with counsel.
The Huntingdon judge concluded Metz had decided on his own not to testify.
The Superior Court concluded the advice by the trial counsel not to testify was reasonable under the circumstances.
"We find the (Huntingdon) court's determination to be supported by the record and free of legal error. Metz has failed to prove his trial counsel interfered with his right to testify and has not explained how counsel's advice not to testify was unreasonable," the Superior Court ruled.
The second issue involving that defense attorney's failure to adequately challenge the use of a video deposition to present the victim's story, as opposed to having her testify at trial, was also rejected by the state appeals court.
The defense strategy during the trial was to challenge the credibility of the child's story by showing the mother and grandmother had motives to fabricate the accusations against Metz.
The indecent assault of the child allegedly occurred during a party.
The defense called at least 10 witnesses who testified they did not see anything occur between Metz and the child, and some confirmed the mother of the child had a reputation for dishonesty.
The defense during trial was also able to attack the possible coaching of the victim and the child's disclosures by revealing "significant custody conflicts and involvement of children's services with the immediate and extended family," the Superior Court ruled.
While defense counsel during the Zanic review of the case indicated he wished he had "pushed harder" concerning opposition to the introduction of the forensic interview video, the Superior Court concluded the record indicated Metz did not prove his counsel "did not have a reasonable basis for agreeing to the admission of the video."
"This alone is fatal to his ineffectiveness claim," according to the Superior Court.
The defense now has the option of seeking Supreme Court review of the Zanic decision.