Commonwealth v. Riggle

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,

____________________________________________
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

____________________________________________
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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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2015

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