Commonwealth v. Riggle ( 2015 )

J-S34002-15
2015 Pa. Super. 147
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY EUGENE RIGGLE,
Appellant No. 1112 MDA 2014
Appeal from the PCRA Order June 6, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001002-2008
BEFORE: BOWES, OTT and STABILE, JJ.
OPINION BY BOWES, J.: FILED JULY 07, 2015
Larry Eugene Riggle appeals pro se from the June 6, 2014 order
denying him PCRA relief. We affirm.
On April 29, 2009, a jury convicted Appellant of one count each of
involuntary deviate sexual intercourse, aggravated indecent assault, and
corruption of a minor, and four counts of indecent assault. The victim was
M.B., Appellant’s thirteen-year-old nephew, who was sexually abused by
Appellant from June 2007 to February 2008. M.B. testified that Appellant,
then forty-nine years old, performed oral sex on him on five occasions.
Appellant also penetrated his nephew’s anus with his fingers at least five
times and placed his penis inside the victim’s anus once. M.B. said that
three dildos colored caramel, black, and purple were used during other
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sexual assaults. Appellant also showed M.B. gay pornographic movies.
Pursuant to a search warrant, police recovered the three described dildos
and gay pornography from Appellant’s residence.
Appellant did not admit to committing the crimes and maintained to
police that M.B. knew about the sex toys and pornography from secretly
going through Appellant’s belongings. At trial, Appellant testified in his own
defense, again denying that he sexually assaulted M.B. Appellant also
presented character witnesses and the testimony of two relatives who lived
with Appellant during the time frame of the assaults. The jury credited the
Commonwealth’s proof and convicted Appellant.
On August 7, 2009, Appellant was sentenced to eight to sixteen years
incarceration followed by four years of probation. The sentence included a
mandatory minimum term of five years incarceration for the crime of
involuntary deviate sexual intercourse. 42 Pa.C.S. § 9718(a)(1)1 (“A
person convicted of the following offenses when the victim is less than 16
years of age shall be sentenced to a mandatory term of imprisonment as
follows: . . . 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse)—not less than ten years.”).2 On direct appeal, we affirmed,
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1
This statute has been declared unconstitutional. See Commonwealth v.
Wolfe, 106 A.3d 800 (Pa.Super. 2014) (Bowes, J., concurring).
2
Effect January 1, 2007, § 9718 was amended so as to increase the
mandatory minimum sentence from five years to ten years for involuntary
(Footnote Continued Next Page)
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rejecting Appellant’s challenges to the sufficiency and weight of the
evidence. Commonwealth v. Riggle, 31 A.3d 746 (Pa.Super. 2011)
(unpublished memorandum). Our Supreme Court denied allowance of
appeal on December 15, 2011. Commonwealth v. Riggle, 34 A.3d 829
(Pa. 2011).
On December 18, 2012, Appellant filed a timely PCRA petition. He
averred that trial counsel was ineffective for failing to: 1) call witnesses
Richard Bower, Carol Henry, Jack Eoute and Raymone Kontz III; 2) cross-
examine Denise Scott by rebutting her testimony that M.B. suffered from a
central auditory processing disorder; 3) request the victim’s medical records,
which would have demonstrated that there was nothing physically wrong
with M.B.; 4) object to the Commonwealth’s failure to establish a specific
date that he committed the offenses; and 5) object to the prosecutor’s
improper closing remarks.
Appellant completed witness certifications. Mr. Bower and Mr. Eoute
purportedly would have testified that M.B.’s parents used Appellant’s
address to defraud the county, state, and federal governments of cash, food
stamps, and medical care, and, after Appellant reported them to authorities,
they encouraged M.B. to fabricate the charges in order to retaliate against
_______________________
(Footnote Continued)
deviate intercourse when the victim was less than sixteen years old. P.L.
1567, No. 178, § 4 (enacted November 29, 2006). At sentencing, the
parties were under the impression that the applicable mandatory minimum
sentence remained five years. N.T. Sentencing, 8/7/09, at 14, 38.
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Appellant. Appellant represented that Ms. Henry would have stated that,
when she babysat M.B., he would rummage through her drawers and
cupboards. Mr. Kontz allegedly would have informed the jury that M.B.’s
parents and family “always lie.” PCRA Petition, 12/18/12, at 6. Counsel was
appointed but filed a petition to withdraw and a no-merit letter, as permitted
by Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc ).
The PCRA court found that none of Appellant’s issues had merit,
allowed counsel to withdraw, and sent notice of its intent to dismiss the
PCRA petition without a hearing. In response to the notice, Appellant
claimed that his sentence was illegal under Alleyne v. United States, 133
S. Ct. 2151 (2013).
Appellant filed the present appeal from the June 6, 2014 order denying
him PCRA relief. Appellant was ordered to file a statement of matters
complained of on appeal.3 Appellant raised seven issues therein: 1) his
sentence is illegal under Alleyne; 2) trial counsel was ineffective for failing
to object to various improper remarks that the prosecutor made during her
closing; 3) trial counsel was ineffective for not presenting expert witnesses
to contradict Denise Scott’s expert testimony; 4) trial counsel was ineffective
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3
We note that the trial court gave Appellant more than twenty-one days to
file the statement and that the order notified Appellant that any issue not
raised in the Pa.R.A.P. 1925(b) statement would be waived.
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for not obtaining pre-trial discovery of the victim’s medical records; 5) he is
entitled to a new trial based upon prosecutorial misconduct; 6) PCRA counsel
should not have been allowed to withdraw “where Appellant had meritorious
issues concerning violation of his guaranteed and protected constitutional
rights to a Jury trial, Fair trial, and the Due Process Clauses of the United
States and Pennsylvania Constitution,” Statement of Matters Complained of
on Appeal, 8/5/14, at ¶ 6; and 7) his constitutional rights were violated
because the Commonwealth did not specify the dates upon which the
offenses occurred. While Appellant reserved the right to file a supplemental
Pa.R.A.P. 1925(b) statement, none was filed.
On appeal, Appellant raises eight contentions:
I. Appellant's sentence is illegal under Alleyne v. United
States, 133 S. Ct. 2151(2013), because the trial court's
application of 42 Pa.C.S.A. § 9718 to impose a mandatory
minimum sentence violated Appellant's constitutional rights to a
jury under the 6th amendment and the 14th amendments of the
United States Constitution and Article I, § 9 of the Pennsylvania
Constitution and the due process clauses.
II. The PCRA court erred as a matter of law and
constitution, when it dismissed Appellant's PCRA petition, where
Appellant had meritorious issues that his trial counsel was
constitutionally ineffective for failing to make a critical and valid
objection to the prosecutor’s closing remarks that (1) bolstered
and vouched for witnesses: (2) unfairly characterized and
stigmatized appellant's with epithets; (3) expressed her own
personal beliefs by direct statements and indirect figure of
speech as to the veracity of the witnesses: (4) engaged in
conduct designed to arouse and inflame the passion of the jurors
and prompt the jury to act out of sympathy for the victim; and
(5) indicated that information which is not before the jury
supports the witness testimony.
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III. The PCRA court erred as a matter of law and
constitution when it dismissed Appellant's PCRA petition, where
appellant had meritorious issues that trial counsel was
constitutionally ineffective for failing to present expert witness
testimony to contradict Denise Scott a Commonwealth witness's
testimony.
IV. The PCRA court erred as a matter of law and
constitution when it dismissed Appellant's PCRA petition, where
Appellant had meritorious issues that trial counsel was
constitutionally ineffective for failing to investigate and
request/ask for pretrial discovery concerning medical records of
the victim.
V. The PCRA court erred as a matter of law and
constitution when it dismissed appellant's PCRA petition, where
Appellant had meritorious issues that the prosecutor committed
prosecutorial misconduct.
VI. The PCRA court erred as a matter of law and
constitution when it dismissed Appellant’s PCRA petition where
appellant had meritorious issues that he was denied his federal
and state guaranteed and protected constitutional rights,
because he was denied an opportunity to present a defense by
Commonwealth and trial counsel, by the failure of the
commonwealth to specify the date on which the alleged offense
actually occurred.
VII. The PCRA court erred as a matter of law and
constitution when it dismissed Appellant’s PCRA petition where
Appellant had raised meritorious issues that his trial counsel was
ineffective for failing to investigate, interview, subpoena and call
to testify critical witnesses for the defense whose testimony
would have established Appellant's innocence.
VIII. The PCRA court erred as a matter of law and
constitution when it accepted and allowed appointed PCRA
counsel to file a "no merit letter" and withdraw where Appellant
had and raised meritorious issues concerning an illegal sentence
and violations of his guaranteed and protected constitutional
rights to a jury trial, fair trial, compulsory process and due
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process and equal protection and the due process clauses of the
Pennsylvania and United States Constitutions.
Appellant’s brief at i-ii.
Initially, we outline the applicable principles regarding our review of
the PCRA court’s determinations herein:
An appellate court reviews the PCRA court's findings of fact to
determine whether they are supported by the record, and reviews
its conclusions of law to determine whether they are free from
legal error. The 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 at the trial level.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa.Super. 2014)
(citation omitted).
Appellant first maintains that his sentence is illegal under Alleyne,
supra. In Alleyne, the Supreme Court held that the constitutional jury trial
right requires any fact, other than a prior conviction, that triggers a
mandatory minimum sentence to be proven beyond a reasonable doubt
before the finder of fact. Alleyne is an application of the Court’s prior
pronouncement in Apprendi v. New Jersey, 530 U.S. 466 (2000), which
ruled that any fact that increases a maximum sentence must be found by
the factfinder beyond a reasonable doubt or admitted by the defendant
during his guilty plea. In Alleyne, the United States Supreme Court
expressly overruled Harris v. United States, 536 U.S. 545 (2002), which
held that a fact that involves a mandatory minimum sentence does not
implicate jury trial rights. Alleyne also implicitly abrogated McMillan v.
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Pennsylvania, 477 U.S. 79 (1986), which withstood an Apprendi attack in
the Harris decision.
In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)
(relying upon Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super.
2013) (en banc)), we noted that Alleyne will be applied to cases pending on
direct appeal when Alleyne was issued. Appellant seeks to apply
Newman’s ruling in this PCRA context and to afford Alleyne full retroactive
effect based upon Watley and Newman, both of which were direct appeals.
Importantly, in Watley, this Court distinguished between applying
Alleyne on direct appeal and on collateral review. We noted that a case
may be retroactive on direct appeal, but not during collateral proceedings.
Watley, supra at 117 n.5. Thus, while this Court has held that Alleyne
applies retroactively on direct appeal, we have declined to construe that
decision as applying retroactively to cases during PCRA review. See
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).
In Miller, the PCRA petitioner attempted to utilize Alleyne as a
timeliness exception to the PCRA’s one-year time bar based on the
retroactive new constitutional rule exception. Miller, however, had been
sentenced to a mandatory minimum based on prior convictions for violent
crimes and Alleyne itself held that it did not apply to prior convictions. See
Alleyne, supra at 2160 n.1; see also Watley, supra at 117 n.3. Thus,
Alleyne had no application to the petitioner therein. However, the Miller
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panel discussed whether either the United Supreme Court or Pennsylvania
Supreme Court held Alleyne retroactive. The Miller Court opined that
because neither high court announced that Alleyne applied retroactively,
that decision could not qualify as a timeliness exception even if applicable.
Since neither Watley nor Newman involved a PCRA petitioner, they
are not dispositive as to whether Alleyne is fully retroactive and to be
applied on collateral review. The seminal test in determining whether a
constitutional rule warrants retroactive application during collateral review
was delineated in Teague v. Lane, 489 U.S. 288 (1989) (plurality), which
was subsequently adopted by a majority of the Supreme Court. See
Commonwealth v. Lesko, 15 A.3d 345, 363 (Pa. 2011) (citing Butler v.
McKellar, 494 U.S. 407 (1990)). “Under the Teague framework, an old
rule applies both on direct and collateral review, but a new rule is generally
applicable only to cases that are still on direct review. A new rule applies
retroactively in a collateral proceeding only if (1) the rule is substantive or
(2) the rule is a ‘watershed rule of criminal procedure’ implicating the
fundamental fairness and accuracy of the criminal proceeding.” Whorton v.
Bockting, 549 U.S. 406, 416 (2007) (internal citations omitted).
While state courts are free to adopt more liberal standards in
determining whether a decision is to be accorded full retroactivity, our
Supreme Court has utilized the Teague test in examining retroactivity
issues during state collateral review. Commonwealth v. Bracey, 986 A.2d
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128 (Pa. 2009); Commonwealth v. Hughes, 865 A.2d 761 (Pa. 2004)
(discussing Teague and whether a new rule was a watershed procedural
rule); see also Commonwealth v. Cunningham, 81 A.3d 1, 8 (Pa. 2013)
(“This Court, however, generally has looked to the Teague doctrine in
determining retroactivity of new federal constitutional rulings.”). In
Cunningham, the Court acknowledged that “this practice is subject to
potential refinement” and “is not necessarily a natural model for retroactivity
jurisprudence as applied at the state level.” Cunningham, supra at 8.
However, it ultimately applied the Teague formulation.
In Teague, the Supreme Court sua sponte addressed the issue of
retroactivity and stated, “[r]etroactivity is properly treated as a threshold
question, for, once a new rule is applied to the defendant in the case
announcing the rule, evenhanded justice requires that it be applied
retroactively to all who are similarly situated.” Teague, supra at 300-01.
The Court continued,
It is admittedly often difficult to determine when a case
announces a new rule, and we do not attempt to define the
spectrum of what may or may not constitute a new rule for
retroactivity purposes. In general, however, a case announces a
new rule when it breaks new ground or imposes a new obligation
on the States or the Federal Government. See, e.g., Rock v.
Arkansas, 483 U.S. 44, 62, 107 S. Ct. 2704, 2714, 97 L. Ed. 2d 37
(1987) (per se rule excluding all hypnotically refreshed testimony
infringes impermissibly on a criminal defendant's right to testify
on his behalf); Ford v. Wainwright, 477 U.S. 399, 410, 106
S. Ct. 2595, 2602, 91 L. Ed. 2d 335 (1986) (Eighth Amendment
prohibits the execution of prisoners who are insane). To put it
differently, a case announces a new rule if the result was not
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dictated by precedent existing at the time the defendant's
conviction became final.
Id. at 301 (emphasis in original).
Alleyne undoubtedly is a new constitutional rule as it expressly
overruled Harris v. United States, supra, which had reaffirmed the early
1986 decision in McMillan v. Pennsylvania, supra. The Teague Court
explained that new constitutional rules “generally should not be applied
retroactively to cases on collateral review.” Teague, supra at 305-06. In
Penry v. Lynaugh, 492 U.S. 302 (1989), abrogated on other grounds by
Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court more fully
delineated the law governing retroactivity.
In Teague, we concluded that a new rule will not be applied
retroactively to defendants on collateral review unless it falls
within one of two exceptions. Under the first exception
articulated by Justice Harlan, a new rule will be retroactive if it
places “‘certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe.’” Teague, supra, at 307, 109 S.Ct., at 1073 (quoting
Mackey, 401 U.S., at 692, 91 S.Ct., at 1179 (Harlan, J.,
concurring in judgments in part and dissenting in part)).
Although Teague read this exception as focusing solely on new
rules according constitutional protection to an actor's primary
conduct, Justice Harlan did speak in terms of substantive
categorical guarantees accorded by the Constitution, regardless
of the procedures followed. This Court subsequently held that
the Eighth Amendment, as a substantive matter, prohibits
imposing the death penalty on a certain class of defendants
because of their status, Ford v. Wainwright, supra, 477 U.S.,
at 410, 106 S. Ct., at 2602 (insanity), or because of the nature of
their offense, Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861,
53 L. Ed. 2d 982 (1977) (rape) (plurality opinion). In our view, a
new rule placing a certain class of individuals beyond the State's
power to punish by death is analogous to a new rule placing
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certain conduct beyond the State's power to punish at all. In both
cases, the Constitution itself deprives the State of the power to
impose a certain penalty.
Penry, supra at 329-30; see also Schriro v. Summerlin, 542 U.S. 348,
352 n.4 (2004).
As noted, the United States Supreme Court has utilized a substantive
and procedural rule dichotomy in analyzing retroactivity. Substantive rules
are those that decriminalize conduct or prohibit punishment against a class
of persons. See Hughes, supra at 781. Concomitantly, the Supreme Court
has made clear that “rules that regulate only the manner of determining
the defendant's culpability are procedural.” Schriro, supra at 353 (citation
omitted, emphasis in original). A constitutional criminal procedural rule will
not apply retroactively unless it is a watershed rule that implicates the
fundamental fairness and accuracy of the criminal proceeding.
A procedural rule is considered watershed if it is necessary to prevent
an impermissibly large risk of an inaccurate conviction and alters the
understanding of the bedrock procedural elements essential to the fairness
of a proceeding. See Whorton, supra at 418. The only rule explicitly
recognized by the United States Supreme Court as a watershed criminal
procedural rule was announced in Gideon v. Wainwright, 372 U.S. 335
(1963), i.e., the right to counsel during a felony criminal prosecution.
Whorton, supra at 419.
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Instantly, the Alleyne ruling does not prohibit punishment for a class
of offenders nor does it decriminalize conduct. Rather, Alleyne procedurally
mandates the inclusion of facts in an indictment or information, which will
increase a mandatory minimum sentence, and a determination by a fact-
finder of those facts beyond a reasonable doubt. Alleyne, therefore, is not
substantive. Nor does Alleyne constitute a watershed procedural rule. See
also United States v. Reyes, 755 F.3d 210 (3rd Cir. 2014); United
States v. Redd, 735 F.3d 88, 91–92 (2d Cir.2013); In re Payne, 733 F.3d
at 1029–30; In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013); Simpson
v. United States, 721 F.3d 875 (7th Cir. 2013).
In this regard, the United States Supreme Court decision in Schriro,
supra, and its discussion of Ring v. Arizona, 536 U.S. 584 (2002), is
instructive. Preliminarily, Ring involved a successful Apprendi challenge to
a death penalty statute. Alleyne, it should be remembered, relied on the
Apprendi rationale. The High Court, in considering whether Ring applied
retroactively, ruled that whether a judge or jury determined the facts
essential to the increased punishment beyond a reasonable doubt was not
material to the fundamental fairness or accuracy of capital sentencing. See
Schriro, supra. Therefore, the distinction between whether a judge or jury
determines the facts at issue does not result in the procedure announced in
Alleyne being a watershed rule. Although submission to a jury of certain
facts may lead to more acquittals of the now “aggravated crime,” it does not
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undermine the underlying conviction or sentence of the “lesser crime.” This
is because, in Pennsylvania, absent the jury finding the applicable facts, the
defendant could receive the identical sentence for the “lesser crime.” Hence,
the fundamental fairness of the trial or sentencing is not seriously
undermined, and Alleyne is not entitled to retroactive effect in this PCRA
setting.
Appellant’s second contention is that trial counsel was ineffective for
failing to object to various statements made by the prosecutor during
closing. Trial counsel “is presumed effective, and to rebut that presumption,
the PCRA petitioner must demonstrate that counsel's performance was
deficient and that such deficiency prejudiced him.” Freeland, supra at 775
(citation omitted). There is a three-part test for proving counsel’s
ineffectiveness: “To establish trial counsel's ineffectiveness, a petitioner
must demonstrate: (1) the underlying claim has arguable merit; (2) counsel
had no reasonable basis for the course of action or inaction chosen; and (3)
counsel's action or inaction prejudiced the petitioner. See Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).” Id.
(citation omitted). “Counsel's assistance is deemed constitutionally effective
once this Court determines that the defendant has not established any one
of the prongs of the ineffectiveness test.” Id. (citation and emphasis
omitted).
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Appellant first suggests that the prosecutor mischaracterized the
testimony of Lycoming County Detective William Weber. Detective Weber
stated that he was involved in the investigation of the sexual assaults
committed by Appellant and that he interviewed M.B. on February 21, 2008.
Due to the hearsay rule, Detective Weber was not permitted to outline
precisely what M.B. told him, but that witness indicated that M.B.’s
accusations against Appellant resulted in the issuance of the search warrant
for Appellant’s home.
Appellant contends that remarks of District Attorney Melissa Kalaus
were therefore improper since she maintained during her summation that
M.B. “told Agent Weber that his Uncle Larry, the Defendant, when he was 13
put his penis in [M.B.’s] anus, put his finger in [M.B.’s] anus, stuck a dildo in
[M.B.’s] anus. . . . not to forget, putting his mouth on [M.B.’s] penis.” N.T.
Closing, 4/29/09, at 25-26.
A prosecutor’s remarks
constitute reversible error only where their unavoidable effect is
to prejudice the jury, forming in the jurors' minds a fixed bias
and hostility toward the defendant such that they could not
weigh the evidence objectively and render a fair verdict.
While it is improper for a prosecutor to offer any personal
opinion as to guilt of the defendant or credibility of the
witnesses, it is entirely proper for the prosecutor to summarize
the evidence presented, to offer reasonable deductions and
inferences from the evidence, and to argue that the evidence
establishes the defendant's guilt. In addition, the prosecutor
must be allowed to respond to defense counsel's arguments, and
any challenged statement must be viewed not in isolation, but in
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the context in which it was offered. The prosecutor must be free
to present his or her arguments with logical force and vigor.”
Within reasonable bounds, the prosecutor may employ oratorical
flair and impassioned argument when commenting on the
evidence . . . .
Commonwealth v. Bryant, 67 A.3d 716, 727-28 (Pa. 2013) (citations
omitted).
In this case, Detective Weber initiated the investigation that led to the
filing of the charges against Appellant based upon his interview with M.B.
While Detective Weber, due to the hearsay rule, was not permitted to
specifically delineate what M.B. said, the reasonable inferences from
Detective Weber’s testimony, coupled with that of M.B., was that M.B.
reported to Detective Weber that Appellant committed the same conduct
that M.B. outlined at trial. Hence, these remarks were based on reasonable
inferences and deductions from the testimony of M.B. and Detective Weber.
The argument was therefore not improper.
Appellant also lists an additional eleven remarks by Ms. Kalaus and
maintains that they were inflammatory, unsupported by the evidence, or
improperly expressed an opinion as to the veracity of a witness. We have
reviewed the comments and conclude that they were supported by the
evidence and did not indicate Ms. Kalaus’ personal belief in a witnesses’
credibility or Appellant’s guilt. At one point, she did represent that M.B. was
“credible and telling the truth.” N.T. Closing Arguments, 4/29/09, at 36.
However, that argument was a direct retort, and therefore fair response, to
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defense counsel’s closing argument that M.B. was a juvenile delinquent, had
lied about other events, and also lied about the sexual assaults at issue
herein. Id. at 2, 3, 4, and 5. Since none of the closing argument was
improper, trial counsel was not ineffective for failing to object.
In his third issue, Appellant suggests that trial counsel was ineffective
for failing to impeach Denise Scott. Ms. Scott’s testimony was brief. She
reported that M.B. had difficulties responding during verbal discussions. She
explained that he required “a great deal of time in between questions to be
able to process the thoughts and to be able to take in what is being
presented to him.” N.T. Trial, 4/28/09, at 18. Ms. Scott continued that M.B.
thus did not respond to questions quickly. Trial counsel did not question the
witness.
Appellant insists that counsel should have impeached Ms. Scott with
contradictory expert testimony and should have required her to prove the
veracity of her opinion. However, Ms. Scott’s testimony was presented to
explain why M.B. would be testifying in an unusual manner and was
unrelated to Appellant’s guilt or innocence. Additionally, Appellant proffers
no actual evidence that her testimony was false nor is there any indication
that she had any motive to lie about the fact that M.B. had difficulty with
auditory processing. We thus conclude that Appellant has failed to make a
sufficient showing that counsel could have conducted the proposed
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impeachment and that trial counsel’s failure to cross-examine this witness
could have affected the outcome at trial.
Appellant’s fourth position is that trial counsel should have
investigated and presented hospital medical records of the victim in order to
refute the Commonwealths’ case “concerning the physical assault on the
victim[.]” Appellant’s brief at 23. Appellant fails to appreciate that there
was no indication that M.B. was hospitalized or sought medical treatment for
the sexual assaults. M.B. testified that Appellant performed oral sex on
M.B.’s penis, digitally penetrated M.B.’s anus, and slightly penetrated M.B.’s
anus with his penis. There is no apparent need for medical attention for
these events, and Appellant fails to refer us to any place in the record
wherein anyone stated that the victim did obtain medical treatment due to
Appellant’s activities. Hence, we cannot find trial counsel ineffective for
failing to investigate and obtain the victim’s medical records.
Appellant’s fifth position, which is that prosecutorial misconduct
occurred, is identical to his second allegation. Appellant’s brief at 24
(“Appellant avers that he is herein incorporating issues II, on pages 15 to
20.” We reject that position on the grounds specified supra.
Appellant’s sixth averment is that trial counsel should have objected to
the lack of specificity regarding the dates that the offenses were committed.
He claims that he could not defend against the charges since the dates of
the offenses set forth in the indictment, from June 2007 to February 2008,
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were too vague. Initially, we disagree with the position that Appellant could
not defend against the charges. Appellant presented testimony from two
witnesses, Antonio and Penny Selinas. They related to the jury that, except
for one week, they lived with Appellant from June 10, 2007 through January
6, 2008 and that he could not have perpetrated the crimes outlined by M.B.
since they both were home most of the time.
Furthermore, the applicable law is that:
It is the duty of the prosecution to “fix the date when an
alleged offense occurred with reasonable certainty.”
Commonwealth v. Jette, 818 A.2d 533, 535 (Pa.Super. 2003)
(citation omitted). The purpose of so advising a defendant of the
date when an offense is alleged to have been committed is to
provide him with sufficient notice to meet the charges and
prepare a defense. Commonwealth v. Gibbons, 567 Pa. 24,
784 A.2d 776 (2001).
However, “due process is not reducible to a
mathematical formula,” and the Commonwealth does
not always need to prove a specific date of an
alleged crime. Commonwealth v. Devlin, 460 Pa.
508, 515–516, 333 A.2d 888, 892 (1975). . . .
Permissible leeway regarding the date provided
varies with, inter alia, the nature of the crime and
the rights of the accused. See Pa.R.Crim.P.
560(B)(3), stating that it shall be sufficient for the
Commonwealth to provide in the information, if the
precise date of an offense is not known, an allegation
that the offense was committed on or about any date
within the period fixed by the statute of limitations.
Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super.
2006). Case law has further “established that the Commonwealth
must be afforded broad latitude when attempting to fix the date
of offenses which involve a continuous course of criminal
conduct.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990
(Pa.Super. 2007) (quoting Commonwealth v. Groff, 378
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Pa.Super. 353, 548 A.2d 1237, 1242 (1988)). This is especially
true when the case involves sexual offenses against a child
victim. Id.
In this case, there was an ongoing pattern of sexual abuse. M.B.
reported that Appellant committed oral sex upon him five times and digitally
penetrated his anus on numerous occasions. Appellant also placed his penis
and a dildo slightly inside the victim’s anus and showed him pornography.
M.B. also said that there were times that he used a dildo on Appellant.
Thus, the eight-month period outlined in the indictment was not too vague.
Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa.Super. 2007)
(Commonwealth accused defendant of abusing victim during seven-month
period).
In his seventh claim, Appellant avers that trial counsel should have
presented Mr. Bower, Ms. Henry, Mr. Euote and Mr. Kontz as witnesses.
This issue is waived as it was not contained in Appellant’s Pa.R.A.P. 1925(b)
statement. Commonwealth v. Garland, 63 A.3d 339, 342 (Pa.Super.
2013) (finding one of appellant’s claims “waived since Appellant failed to
present the specific issue in his court-ordered Pa.R.A.P. 1925(b)
statement.”).
Appellant’s final position is that PCRA counsel was ineffective for not
litigating the meritorious Alleyne claim. As we have found that Appellant is
not entitled to relief under Alleyne, PCRA counsel was not ineffective for
failing to advance it during the PCRA proceeding.
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J-S34002-15
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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