NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
ANTHONY SCOTT Appellant No. 2330 EDA 2013
Appeal from the PCRA Order October 17, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0702311-2006
BEFORE: SHOGAN, J., ALLEN, J., and OTT, J. MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2014 Anthony Scott appeals, pro se, from the order entered October 17, 2011, in the Philadelphia County Court of Common Pleas, denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Scott seeks relief from the judgment of sentence of an
imposed after the trial court, sitting without a jury, found him guilty of rape1 and related charges for the repeated
ineffectiveness, trial court error, and the unconstitutionality of a provision in the Pennsylvania Constitution. For the reasons set forth below, we affirm.
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1 18 Pa.C.S § 3121.
Court in the unpublished memorandum decision affirming his judgment of sentence on direct appeal:
ughter, J.W. Until she was six years old, J.W.
where they resided with [Scott]. [Scott] promptly began to sexually abuse J.W. by touching her vagina and chest. The abuse escalated and when the child was seven years old, [Scott]
raped her. [Scott] continued to have sexual intercourse with J.W., and after she was ten years old, started to force her to give him oral sex. In 2006, when she was in sixth grade, J.W.
told her best friend, B.D., about the abuse. B.D. encouraged J.W. to report the crimes to the authorities, and J.W. followed that advice on April 8, 2006. Two police officers arrived at the home and took J.W. to be interviewed by a detective. While J.W.
that she did not believe the allegations and that J.W. was not permitted to return home.
Commonwealth v. Scott, 988 A.2d 730 (Pa. Super. 2009) (unpublished memorandum at 2).
Scott was subsequently arrested and charged with numerous sexual offenses. The case proceeded to bench trial, and, on February 8, 2007, the trial court found Scott guilty of rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, statutory sexual assault, sexual assault, unlawful contact with minor, endangering the welfare of
children, corruption of minors, and simple assault.2 On October 12, 2007,
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2 18 Pa.C.S. §§ 3121, 3123(a)(1), 3125, 3126(a)(1), 3122.1, 3124.1, 6318(a)(6), 4304, 6301(a), and 2701(a), respectively.
3
the trial court found that Scott met the criteria for classification as a sexually violent predator,3
On January 28, 2008, Scott filed a pro se PCRA petition. Counsel was appointed, and filed a petition to withdraw and accompanying Turner/Finley4 September 24, 2008, the trial court permitted defense counsel to withdraw his Turner/Finley nunc pro tunc. Scott then filed a direct appeal nunc pro tunc, and on November 25, 2009, a panel of this Court affirmed his judgment of sentence. See Scott, supra.5 On February 16, 2010, Scott filed a timely, pro se PCRA petition.
Thereafter, he filed pro se amended and supplemental petitions both before and after counsel was appointed on September 3, 2010. On January 3,
2011, PCRA counsel filed a motion for discovery,6 seeking: (1) the police
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3 42 Pa.C.S. §§ 9799.10 et seq.
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 5 Scott raised only two issues in his direct appeal, both challenging the ineffective assistance of trial counsel. A panel of this Court dismissed both n a PCRA
petition. See Scott, supra. 6 discovery
shall be permitted at any stage of the [PCRA] proceedings, except upon (Footnote Continued Next Page)
4
reports;7
any exculpatory information; and (4) permission to subpoena all records from the Department of Human Services (DHS) from 1999 through 2006.
Although the Commonwealth turned over all police reports and DHS records
8
Thereafter, on June 1, 2011, PCRA counsel filed an amended petition
the motion for discovery.9 Scott filed a pro se amended petition, and the Commonwealth filed a motion to dismiss the PCRA petition. On September 14, 2011, the PCRA court issued notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without
first conducting an evidentiary hearing, to which Scott, once again, filed a
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(Footnote Continued)
leave of court after a showing of exceptional circumstances Pa.R.Crim.P. 902(E)(1) (emphasis supplied). 7 PCRA counsel averred that he attempted to obtain copies of the police reports from prior counsel, but was unsuccessful. See Motion for Discovery Under Post Conviction Relief Act, 1/3/2011, at ¶ 5(a). 8 The Commonwealth further asserted that none of these records were in its files. 9 Although no order specifically denying the motion for discovery is included in the certified record, Scott avers in his amended petition that the PCRA
Under Post Conviction Relief Act, 6/1/2011, at ¶ 11.
5
pro se response. However, on October 17, 2011, the PCRA court dismissed the PCRA petition, and Scott filed a timely notice of appeal.
While that appeal was pending, and after counsel filed a Rule 1925(b)
concise statement of errors complained of on appeal, Scott filed a pro se petition for withdrawal of counsel, claiming that PCRA counsel ignored the issues he wished to raise on appeal, and requesting to proceed pro se. On March 5, 2012, this Court directed the PCRA court to conduct a Grazier10 hearing pro se was knowing, intelligent and voluntary. See Order, 3/5/2012. Following a hearing on pro se.
Thereafter, counsel filed another concise statement pursuant to Pa.R.A.P. 1925(b), raising the same two issues included in the first
petition to proceed pro se. In an unpublished memorandum decision filed on March 5, 2013
knowingly, intelligently and voluntarily asserted his right to self-
Commonwealth v. Scott, 69 A.3d 1282 (Pa. Super.
2013) (unpublished memorandum at 13). Accordingly, the panel vacated the order denying PCRA relief and remanded for a proper Grazier hearing.
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10 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
6
Upon remand, the PCRA court held another Grazier hearing, and, on request to proceed pro se. That same day,
This timely appeal followed.11 Scott raises the following nine issues for our review:
1. Whether trial counsel was ineffective for failing to object to hearsay testimony at trial?
2. Whether the PCRA court erred in denying his motion for discovery where exceptional circumstances were shown?
3. Whether trial counsel was ineffective for failing to file a motion in limine challenging the competency of the minor victim and witness, and whether the trial court abused its discretion in permitting the Commonwealth to introduce an out-of-court statement of the minor victim and witness in derogation of 42 Pa.C.S. § 5985.1?
4.
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11 On April 26, 2013, the PCRA court ordered Scott to file a Rule 1925(b) concise statement, and Scott compli 2013.
7
5. Whether the Commonwealth committed a Brady12 violation when it withheld evidence contained in the DHS reports?
6.
evidence?
7. Whether trial counsel was ineffective for stipulating to documents which inculpated Scott?
8.
Republican Form of Government clause, Article IV, Section 4, United States
9. Whether the cumulative effect of the foregoing errors warrants a new trial or discharge? See
Preliminarily, we note that to be eligible for PCRA relief, a petitioner must plead and prove, inter alia
waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction
PCRA court are waived and cannot be raised for the first time on appeal to Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004)
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12 Brady v. Marlyand, 373 U.S. 83 (1963).
8
(citations omitted). See also Commonwealth v. Fletcher, 986 A.2d 759, 778 (Pa. 2009) (issues not preserved in PCRA petition are waived on appeal).
Based upon the foregoing, we find issues four, five, six, and eight are waived for our review. Issues four and six assert trial court error, and could have been raised on direct appeal. Issues five and eight were not included pro se
pro se pro se Rule 1925(b) statement, and are, therefore, waived for our review.13 Accordingly, we proceed to a discussion
When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d
of the PCRA court, and these findings will not be disturbed unless they have Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted).
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13 We note that Scott raised a Brady claim in a September, 2010 application for leave to supplement his pro se PCRA petition. However, that Brady claim referred to a purportedly missing police report, not DHS records.
9
ineffectiveness of counsel, our review is well-settled:
We begin our analysis of ineffectiveness claims with the presumption that counsel is effective. To prevail on his ineffectiveness claims, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) Appellant
regard to the second, i.e.
en
offered a potential for success substantially greater than the i.e., the
prejudice prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been d
Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal
Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012) (citations omitted).
First, Scott argues trial counsel was ineffective for failing to object to
confided that Scott had sexually abused her.14 y
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14 We note that the PCRA court found this issue waived for vagueness. See PCRA Court Opinion, 9/17/2013, at 5-6. Although we acknowledge that Scott did not specify what hearsay testimony he was challenging in his Rule 1925(b) concise statement, this issue was raised in his prior direct appeal See Commonwealth v. Scott, 988 A.2d 730 (Pa. Super. 2009) (unpublished memorandum); Amended (Footnote Continued Next Page)
10
rule, pursuant to Pa.R.E. 613(c)(1), because (1) it was not offered to rebut a specific charge of bias, but rather presented as affirmative evidence, and (2)
they were made four to five years after the alleged abuse began. See -
stimony, could not be
considered harmless error because the prosecution rested entirely upon the credibility of the victim.
The Pennsylvania Rules of Evidence define hearsay as a statement ent trial or
hearing; and (2) a party offers in evidence to prove the truth of the matter -(2). Hearsay statements are generally inadmissible at trial unless an exception to the hearsay rule applies. Pa.R.E. 802. One such exception applies to the admission of a prior consistent statement:
[P]rior consistent statements may be admitted to corroborate or rehabilitate the testimony of a witness who has been impeached, expressly or impliedly, as having a faulty memory, or as having been induced to fabricate the testimony by improper motive or influence. Admission of prior consistent statements on such grounds is a matter left to the sound discretion of the trial court, to be decided in light of the character and degree of
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(Footnote Continued)
Petition Under Post Conviction Relief Act, 6/1/2011, at ¶ 7(1). Therefore, we decline to find it waived for vagueness.
11
impeachment. It is not necessary that the impeachment be direct; it may be implied, inferred, or insinuated either by cross-
examination, presentation of conflicting evidence, or a combination of the two.
Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005) (citation omitted), appeal denied, 880 A.2d 1237 (Pa. 2005). See Pa.R.Crim.P. 613(c)(1).
-examination
of the victim. During the cross-examination, defense counsel emphasized that the victim did not tell any adults, including her mother, about the abuse. More importantly, defense counsel implied the victim fabricated the story after learning that her family might move to New Jersey. See N.T., 2/8/2007, at 120- victim had told her about the abuse, was admissible as a prior consistent
raise a
15
Next, Scott contends the PCRA court erred in denying his request to
16
He argues that, contrary
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15 Commonwealth v. Buterbaugh, 91 A.3d 1247, 1259 (Pa. Super. 2014).
16 The PCRA court also found this issue waived for vagueness. Again, we disagree. The documents Scott sought from the PCRA court were clearly set See Motion for Discovery under Post Conviction Relief Act, 1/3/2011. Therefore, we are able to discern his claim on appeal.
12
Further, Scott claims that, although the victim denied she wrote about the
Id.
is likely that [the diary] could shed some light on the true story of what was going on at the Id.
The Pennsylvania Rules of Criminal Procedure proscribe discovery
of a discovery request in post-conviction proceedings for abuse of Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011), cert. denied, 133 S.Ct. 835 (2013).
records or her diary contain any relevant, exculpatory evidence. In fact, he has not even established that any medical records exist, let alone that they would prove the victim had not been raped. Moreover, the victim testified that she did not write about the assaults in her diary, and Scott has presented no evidence to the contrary. See will not sanction a fishing expedition when Appellant fails to provide even a Commonwealth v. Lark, 746 A.2d 585, 591
13
(Pa. 2000). Accordingly, we detect no abuse of discretion on the part of the
In his third issue, Scott argues trial counsel was ineffective for failing to file a motion in limine challenging the competency of the minor victim and witness. Scott contends that where, as here, the witnesses are under the
Brief at 7, quoting Rosche v. McCoy, 156 A.2d 307, 311 (Pa. 1959).
statements should have been considered in an in camera hearing pursuant
to the tender years statute, 42 Pa.C.S. § 5985.1.17
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17 The Tender Years statute provides, in pertinent part:
(a) General rule.--An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses [relating to sexual assault] not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or (ii) is unavailable as a witness.
42 Pa.C.S. § 5985.1(a).
14
y argument as follows:
In order for a complainant to be competent, they must have the capacity to communicate, the mental capacity to observe and remember the occurrence, and a consciousness of the duty to speak the truth. Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa. Super. 1999)(quoting Rosche v. McCoy, 156 A.2d 307, 310 (Pa. 1959)). Once it is determined that the complainant is competent it is up to the fact finder to determine Commonwealth v.
Blackeney, 946 A.2d 645, 653 (2008)[, cert. denied, 555 U.S.
trial is presumed and the burden falls on the objecting party to demonstrate incompetence. Commonwealth v. Harvey, 812 A.2d 1190, 1199 (Pa. 2002). However, when a child under the age of fourteen is called to testify, the competency of the minor must be independently established. Courts have held that a separate colloquy in order to determine the understanding of the oath is not necessary if the trial court has the opportunity to Id. In the instant case, J.W.
was able to understand the questions asked of her by counsel and was able to frame and express intelligent answers to those questions regarding the details of the abuse. Any challenges
would have been denied; therefore, this claim is meritless.
PCRA Court Opinion, 9/17/2013, at 7-8. We agree. Although the trial court should have conducted a separate colloquy, pursuant to Harvey, to determine the competency of the minor victim and witness, who were 13 and 14 years old respectively, the court sat as fact finder in this non-jury
There distinct colloquy regarding the truthfulness aspects of [their] competency did Harvey, supra, 812 A.2d at 1199. Accordingly, no relief is warranted on this claim.
18
We
as prior consistent statements pursuant to Pa.R.E. 613(c)(1). See supra. The tender years exception in Section 5985.1 provides yet another exception to the hearsay rule. See Hunzer, supra, 868 A.2d at 510. Because we have already found that the testimony was admissible under Rule 613(c)(1), trial counsel was not ineffective for failing to raise a challenge under Section 5985.1. See Commonwealth v. Curley, 910 A.2d 692, 698-699 (Pa. Super. 2006) (discussing the differences between Pa.R.Crim.P. 613(c) and 42 Pa.C.S. § 5985.1), appeal denied, 927 A.2d 622 (Pa. 2007). Therefore, again, no relief is warranted.
In his seventh issue, Scott argues counsel was ineffective for stipulating to documents that inculpated him in the crimes. Specifically,
DHS records. He contends the documents are
Moreover, he notes the records also list three other dates of allegations, two Id.
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18 Although Scott does not specify which out-of-court statements he is
statements J.W. made to her about the abuse.
A review of the trial transcript reveals that trial counsel stipulated as
may contain some hearsay testimony, we remind Scott that he was tried
in criminal cases are presumed to ignore prejudicial evidence in reaching a Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003)
(citation omitted), appeal denied, 863 A.2d 1143 (Pa. 2004). Scott simply
stipulation to the DHS records.19
ineffectiv discharge. We disagree.
It is well-settled that no number of failed ineffectiveness claims may collectively warrant relief if they fail to do so individually.
Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009). Accordingly, where ineffectiveness claims are rejected for lack of arguable merit, there is no basis for an accumulation claim. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 671 (2008).
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19
incident, we note that Scott has not demonstrated that that incident involved the victim, nor that it involved an allegation of sexual assault. Further, as we noted supra, Scott could have subpoenaed additional records from DHS, but failed to do so.
Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa. 2012), cert. denied, 134 S. Ct. 178 (U.S. 2013).
this appeal are worthy of relief, we affirm the order of the PCRA court
Order af pro se Motion for Reconsideration/Remand is denied. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/24/2014