Com. v. Tucker, R.

J-S36023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT TUCKER,
Appellant No. 82 EDA 2016
Appeal from the PCRA Order of December 18, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010230-2010
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 23, 2017
Appellant, Robert Tucker, appeals pro se from the order entered on
December 18, 2015, dismissing his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court ably summarized the underlying facts and procedural
posture of this appeal. As the PCRA court explained:
[The victim in this case, T.C., was born in June 1992]. In
1997, at the age of five, the victim[] resided with her
mother and [Appellant], her mother’s paramour, in the
basement of a house on 15th Street in Philadelphia. In this
basement arrangement, a wall separated the victim’s bed
from the bed shared by her mother and [Appellant]. The
victim’s mother was often drunk and was hospitalized for a
period of two weeks during this time. [Appellant] was
responsible for watching the victim during her mother’s
hospitalization.
While the victim’s mother was hospitalized, [Appellant]
sexually assaulted [the] victim. Initially, [Appellant]
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touched the victim by placing his hand on the skin outside
of her vagina. Thereafter, but while her mother still
remained in the hospital, [Appellant] repeatedly raped the
victim, penetrating her vagina with his penis multiple times.
[Appellant] also penetrated her vagina digitally multiple
times. This molestation did not abate even after the
victim’s mother returned home from the hospital. Amidst
an assault while the victim’s mother was home, [Appellant]
covered the victim’s mouth with his hand when she was
about to cry out and physically restrained her with his
hands and body. He demanded that the victim be quiet and
insisted that no one would believe her and no one loved
her. Bravely, the victim notified her mother of [Appellant’s]
behavior, but her mother instructed her not to mention this
again.
The abuse stopped after the victim, at age six, moved in
with her aunt. Eventually, the victim was placed at
Devereaux, a facility for teens who need extra help or
supervision. At Devereaux, the victim met with a therapist,
“Mr. Bob,” to whom she reported [Appellant’s] abuse in
January 2010. In the presence of the victim, Mr. Bob
immediately reported the incident to the police. . . .
The victim met with Vivian Boyle, a Philadelphia Department
of Human Services representative, on January 26, 2010.
The victim and Ms. Boyle also met on February 5, 2010 and
March 4, 2010. The victim reported that the abuse occurred
sometime when she was between the age of four and six.
The victim was also interviewed by Officer Green of the
Special Victims, Child Abuse Unit on February 15, 2010, and
was examined at St. Christopher’s Hospital during the
investigation.
...
[On September 2, 2010, the Commonwealth filed its
information against Appellant. The information charged
Appellant with a number of crimes against the victim,
including rape, endangering the welfare of children, and
aggravated indecent assault. See Commonwealth’s
Information, 9/2/10, at 1-4]. On June 28, 2011, following a
jury trial . . . , [Appellant] was found guilty of rape,
endangering the welfare of children, [and] aggravated
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indecent assault.[1] On October 28, 2011, [the trial court]
imposed terms of imprisonment of ten [] to [20 years’] for
the charge of rape, [12 to 24 months’] for the charge of
endangering the welfare of a child, and [two-and-a-half to
five years’] for aggravated indecent assault, all to be served
consecutively.
. . . On April 30, 2013, the Superior Court affirmed
[Appellant’s judgment of sentence and, on October 16,
2013, the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v.
Tucker, 75 A.3d 566 (Pa. Super. 2013) (unpublished
memorandum) at 1-8, appeal denied, 77 A.3d 1260 (Pa.
2013)].
PCRA Court Opinion, 6/23/16, at 1-4 (internal footnotes and citations and
some internal capitalization omitted).
On October 31, 2013, Appellant filed a pro se, timely, first PCRA
petition. Within the petition, Appellant claimed that his trial counsel was
ineffective for failing to call the victim’s mother as a witness. Attachment to
Appellant’s PCRA Petition, 10/31/13, at 1-4. Appellant also claimed that the
trial court erred when it permitted the Commonwealth to amend the
information and change the date upon which the alleged offenses occurred
and when it permitted the Commonwealth to introduce evidence of
Appellant’s prior conviction for sexual assault against his daughter. Id. at
17-19 and 25-26.
The PCRA court appointed counsel to represent Appellant during the
proceedings. However, on September 28, 2015, appointed counsel filed a
____________________________________________
1
18 Pa.C.S.A. §§ 3121(a)(1), 4304, and 3125(a)(7), respectively.
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no-merit letter and a request to withdraw as counsel, pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). After reviewing
counsel’s no-merit letter, the PCRA court issued Appellant notice, pursuant
to Pennsylvania Rule of Criminal Procedure 907, of its intent to dismiss
Appellant’s petition in 20 days, without holding a hearing. PCRA Court
Order, 11/9/15, at 1.
On November 17, 2015, Appellant filed a pro se response to counsel’s
Turner/Finley letter and, within this response, Appellant claimed that prior
counsel was ineffective for failing to claim that the statute of limitations
barred Appellant’s prosecution and for failing to call “Dr. Bob” as a witness
at trial. Appellant’s Response, 11/17/15, at 1-8.
On December 18, 2015, the PCRA court dismissed Appellant’s PCRA
petition. Based upon representations made by Appellant and Appellant’s
PCRA counsel, it appears as if the PCRA court also granted counsel’s petition
to withdraw on December 18, 2015.2 Appellant filed a timely notice of
appeal and now raises the following claims on appeal:
____________________________________________
2
The PCRA court order of December 18, 2015 is not in the certified record;
however, we have no reason to believe that the representations made by
Appellant and his PCRA counsel are inaccurate. Moreover, following a
hearing held on February 3, 2017, pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998), the PCRA court determined that Appellant was
permitted to act pro se on appeal. See PCRA Court Letter, 2/3/17, at 1.
Therefore, it is clear that Appellant is properly acting pro se in this appeal.
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1) Did the defense counsel violate [Appellant’s] 6th[] and
14th Amendment rights? (Stickland, & Pierce Standard), &
(Equal Protection of the Law)? When defense counsel failed
to argue about expired statute of limitations (tolling
statute), a failure of due process?
2) Did [Appellant’s] counsel violate [Appellant’s] 6th
Amendment rights, for failing in issuing “duces tecum”[] to
Mr. Bob, who was the victim’s therapist? He was the first
person that the victim had disclosed the allegations during
session (sexual assaults) (delayed reporting [12 yrs-and 3
months later]). It was Mr. Bob who had notified the
authorities in front of the victim?
3) Why did the prosecuting attorney, petitioned the [courts]
to amend the bill of information, when the records clearly
indicated (by the complainant), when the alleged offense
had allegedly took place?
Appellant’s Brief at 6-8 (some internal capitalization omitted).3
As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, 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 at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
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3
For ease of discussion, we have re-ordered Appellant’s claims on appeal.
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To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.First, Appellant claims that his trial counsel was ineffective for failing
to claim that the statute of limitations had expired on his charges and that
the Commonwealth was thus barred from prosecuting him for his crimes.
This claim fails.
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The Commonwealth claimed that Appellant committed rape,
endangering the welfare of children, and aggravated indecent assault
against the victim from January 1, 1996 until June 23, 1998 – when the
victim was between the ages of three-and-a-half to six years old. See N.T.
Trial, 6/29/11, at 4-8 and N.T. Trial, 6/30/11, at 64. At this time, the
relevant statute of limitations read:
(a) General rule.--Except as otherwise provided in this
subchapter, a prosecution for an offense must be
commenced within two years after it is committed.
(b) Major offenses.--A prosecution for any of the
following offenses must be commenced within five years
after it is committed:
(1) Under the following provisions of Title 18 (relating to
crimes and offenses):
...
Section 3121 (relating to rape).
...
Section 3125 (relating to aggravated indecent
assault).
...
(c) Exceptions.--If the period prescribed in subsection (a)
or subsection (b) has expired, a prosecution may
nevertheless be commenced for:
...
(3) Any sexual offense committed against a minor who
is less than 18 years of age any time up to the period of
limitation provided by law after the minor has reached
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18 years of age. As used in this paragraph, the term
“sexual offense” means a crime under the following
provisions of Title 18 (relating to crimes and offenses):
Section 3121 (relating to rape).
...
Section 3125 (relating to aggravated indecent
assault).
...
Section 4304 (relating to endangering welfare of
children).
...
(d) Commission of offense.--An offense is committed
either when every element occurs, or, if a legislative
purpose to prohibit a continuing course of conduct plainly
appears, at the time when the course of conduct or the
complicity of the defendant therein is terminated. Time
starts to run on the day after the offense is committed.
(e) Commencement of prosecution.--Except as
otherwise provided by general rule adopted pursuant to
section 5503 (relating to commencement of matters), a
prosecution is commenced either when an indictment is
found or an information under section 8931(b) (relating to
indictment and information) is issued, or when a warrant,
summons or citation is issued, if such warrant, summons or
citation is executed without unreasonable delay.
42 Pa.C.S.A. § 5552 (quoted provisions in effect from February 17, 1991
until December 19, 2000).
The victim was born in June 1992. Therefore, the Commonwealth had
until June 2012 to charge Appellant with endangering the welfare of children
and until June 2015 to charge Appellant with rape and aggravated indecent
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assault. See 42 Pa.C.S.A. § 5552(a), (b)(1), and (c). The Commonwealth
filed its information against Appellant on September 2, 2010 and, within the
information, the Commonwealth charged Appellant with all three crimes.
See Commonwealth’s Information, 9/2/10, at 1-4. As such, the statute of
limitations did not bar the Commonwealth’s prosecution against Appellant for
rape, aggravated indecent assault, and endangering the welfare of children.
Appellant’s underlying claim thus has no arguable merit and the
ineffectiveness of counsel claim fails. See Fulton, 830 A.2d at 572.
Second, Appellant claims that his trial counsel was ineffective for
failing to call the victim’s therapist, “Dr. Bob,” as a witness at trial.
Appellant’s Brief at 8. The PCRA court thoroughly explained why Appellant’s
underlying claim lacks merit:
According to [Appellant], [Dr. Bob] would have undermined
the victim’s testimony, particularly by testifying about the
victim’s other sexual encounters since her abuse that would
have supported [Appellant’s] claim that the victim was
lying.
Pennsylvania’s Rape Shield law precludes testimony
regarding an alleged victim’s past sexual conduct. [18
Pa.C.S.A. § 3104]. The relevant portion of the statute
states[:]
Evidence of specific instances of the alleged victim’s past
sexual conduct, opinion evidence of the alleged victim’s
past sexual conduct, and reputation evidence of the
alleged victim’s past sexual conduct shall not be
admissible in prosecutions under this chapter except
evidence of the alleged victim’s past sexual conduct with
the defendant where the consent of the alleged victim is
at issue and such evidence is otherwise admissible
pursuant to the rules of evidence.
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Id.
In the instant case, any testimony [Dr. Bob] could have
offered regarding the victim’s sexual history would have
been precluded by the Rape Shield law. The exception of
the Rape Shield law, which applies in cases where consent
of the alleged victim is at issue, does not apply here where
the victim was between [three-and-a-half] and six years old
and could not consent.
With the evidence of the victim’s sexual history
inadmissible, trial counsel could not have been ineffective
for failing to call [Dr. Bob]. [Dr. Bob] would have merely
corroborated the victim’s testimony. [Dr. Bob’s] knowledge
of the offenses came solely from the victim’s reporting the
abuse. [Appellant] was not prejudiced by his trial counsel’s
decision to not put [Dr. Bob] on the stand because his
testimony simply would not have been helpful to
[Appellant’s] case. Thus, [Appellant’s] argument to the
contrary is without merit.
PCRA Court Opinion, 6/23/16, at 6-7 (internal citations and footnote
omitted).
Finally, Appellant claims that the trial court erred when it permitted
the Commonwealth to amend the information on the date of trial. This claim
is waived under the PCRA, as Appellant “could have raised [the claim] but
failed to do so” in his direct appeal from his judgment of sentence. 42
Pa.C.S.A. §§ 9543(a)(3) and 9544(b). Therefore, Appellant is not entitled to
relief on this claim.4
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4
We note that any claim contained in the argument section of Appellant’s
brief, but which is not contained in the statement of questions involved
section, is waived. Pa.R.A.P. 2116(a) (“[t]he statement of the questions
involved must state concisely the issues to be resolved, expressed in the
(Footnote Continued Next Page)
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Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
_______________________
(Footnote Continued)
terms and circumstances of the case but without unnecessary detail. The
statement will be deemed to include every subsidiary question fairly
comprised therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”).
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