Com. v. Faiola, A.

Superior Court of Pennsylvania

Com. v. Faiola, A.

Superior Court of Pennsylvania·Decided September 20, 2023·No. 254 MDA 2023·Unpublished

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

ANTHONY FAIOLA :

:

Appellant : No. 254 MDA 2023

Appeal from the PCRA Order Entered January 23, 2023 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000261-2019

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J. MEMORANDUM BY BOWES, J.: FILED: SEPTEMBER 20, 2023 Anthony Faiola appeals from the order that denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm. This case has an extensive procedural history that we need not recount with detail herein. Pertinent to this appeal we observe that “Appellant was charged with corruption of minors, indecent assault, and endangering the welfare of a child in connection with the 2017 sexual assault of a minor (‘the victim). After a jury trial, at which the victim testified against Appellant, the jury convicted Appellant on all charges.” Commonwealth v. Faiola, 284 A.3d 960, 2022 WL 3909382, *1 (Pa.Super. 2022) (non-precedential decision). He was sentenced to two and one-half to five years of imprisonment. Appellant’s nunc pro tunc direct appeal resulted in no relief because, inter alia, he waived his claim that trial court erred in conducting a

competency hearing on the victim in the presence of the jury by not objecting at trial. Id. (non-precedential decision at 7).

Appellant filed a timely PCRA petition on October 31, 2022. Finding no merit to the claim that counsel was ineffective for not objecting to the jury’s presence while the victim was subjected to a competency voir dire, the PCRA court denied the petition by order of January 23, 2023. This timely appeal followed.1 Appellant presents one question for our determination: “Whether the [PCRA] court erred in denying Appellant[’s PCRA] petition for a claim of ineffective assistance of counsel for trial counsel’s failure to object to the presence of the jury during the competency hearing of the minor witness/victim?” Appellant’s brief at 5.

We begin with the relevant legal principles. “In general, we review an order dismissing or denying a PCRA petition as to whether the findings of the PCRA court are supported by the record and are free from legal error.” Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (cleaned up).

As to legal questions, we apply a de novo standard of review to the PCRA court’s legal conclusions, and this Court may affirm a PCRA court’s order on any legal basis. As to factual questions, our 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 in the lower court. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

1 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement and none was filed.

Id. (cleaned up). “It is an appellant’s burden to persuade us that the PCRA court erred and that relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up). Appellant challenges the effectiveness of his trial counsel. To prevail on this claim, he must establish:

(1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was without a reasonable basis designed to effectuate his client’s interest; and (3) that he was prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different.

Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa.Super. 2019) (cleaned up). “The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail.” Commonwealth v. Davis, 262 A.3d 589, 595– 96 (Pa.Super. 2021). Appellant’s claim is that trial counsel was ineffective in failing to object when the trial court held a hearing in the jury’s presence to assess the victim’s competence to testify as a witness. The PCRA court rejected the notion that any competency hearing occurred, since the parties had stipulated to the competency of the then-eight-year-old victim. See PCRA Court Opinion, 2/8/21, at 10. Instead, the PCRA court maintained it “merely conducted introductory questions and then administered the [c]hild’s oath to tell the truth,” and made no competency ruling. Id. at 10-11. The PCRA court further opined that Appellant was unable to establish prejudice because the jury was

instructed in the opening and closing charges that they were the sole judge of the credibility of the witnesses. Id. at 11. Appellant argues that it was improper for the trial court to delve into the victim’s understanding of the difference between truth and lie and the ramifications of lying in front of the jury. See Appellant’s brief at 15. He contends that the jury’s observation of the “voir dire and the trial court’s ruling on competency had the practical effect of endorsing the credibility of the witness.” Id. at 24. Appellant asserts that counsel had no reasonable basis for failing to object because there is a per se rule against allowing the jury to view a competency hearing. Id. at 27. Further, Appellant avers that he was prejudiced by the trial court’s impermissible bolstering of the victim’s credibility, as his “defense was based entirely on the lack of credibility of the child complainant.” Id. at 26. An examination of two decisions by our Supreme Court informs our resolution of Appellant’s claim. First, in Commonwealth v. Washington, 722 A.2d 643 (Pa.1998), the trial court, over the defendant’s objections, conducted competency colloquies of the children during trial in the presence of the jury and ruled in open court that each was competent. Our High Court acknowledged that there were good reasons to allow the jury to observe the voir dire examination of the child. However, the Washington Court resolved that “[e]ven with a cautionary instruction, . . . permitting the competency proceedings to take place in the presence of the jury inevitably permeates into

the veracity determination assigned exclusively to the jury.” Id. “Particularly in cases . . . where credibility is the central issue, the likely impact of conducting the competency proceedings in the presence of the jury cannot be diminished.” Id. Since it could not “mitigate fairness over economy,” the Court adopted “a per se rule requiring the trial court to conduct a competency hearing in the absence of the jury.” Id. Our Supreme Court revisited this issue in the context of a PCRA claim of ineffective assistance of counsel in Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011). There, two children under the age of thirteen were eyewitnesses to their mother’s murder, who was one of the defendant’s romantic partners. Defense counsel did not challenge their competency, and the trial court held no separate competency hearing. Rather, both witnesses were questioned at the outset of their testimony at trial, in the presence of the jury, as to their understanding of the difference between truth and lie and the consequences for lying. Both children immediately proceeded to examination by counsel without the judge making any ruling upon or reference to their competency. Id. at 292-94. Following his convictions, the defendant sought PCRA relief based upon counsel’s failure to object to the presence of the jury during the voir dire of the children. After examining the Washington decision, the Hutchinson Court acknowledged that the claim had arguable merit, as “the trial court’s voir dire procedure violated the per se rule promulgated in Washington.” Id.

at 295. However, the Court held that the claim failed because the defendant could not establish prejudice. The Court founded its conclusion on three main bases. First, it indicated:

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