Tyma v. Dist. Attorney of Allegheny Cnty.

• Decision Date: 27 December 2019
• Docket Number: Civil Action No. 17-15
• Parties: THOMAS TYMA, Petitioner, v. DISTRICT ATTORNEY OF ALLEGHENY COUNTY and ATTORNEY GENERAL COMMONWEALTH OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

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

Civil Action No. 17-15

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

December 27, 2019

Magistrate Judge Maureen P. Kelly

OPINION AND ORDER

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 alonewith 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.

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