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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EPHRAIM SANTANE
Appellant No. 1320 EDA 2014
Appeal from the PCRA Order March 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000479-2009
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 08, 2015
Appellant Ephraim Santane appeals from the March 27, 2014 order
from the Philadelphia County Court of Common Pleas dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541
et seq. We affirm.
On September 26, 2008, Appellant was arrested and charged with
numerous sexual offenses relating to the sexual abuse of his cousin’s
daughter. The abuse stopped in 1999, when the victim was almost six years
old, after the victim’s sister observed Appellant engaged in a sexual act with
the victim and informed their mother. Commonwealth v. Santane, No.
2630 EDA 2010, at 1-2 (Pa.Super. Aug. 24, 2011) (unpublished
memorandum). The victim’s mother banished Appellant from the house and
Appellant did not see the victim again. Id. at 2. While hospitalized in 2008
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at a facility specializing in psychiatric and psychological treatment, the victim
informed hospital staff of the abuse, and hospital staff reported the abuse to
the Philadelphia Police Department. Id.
A March 2010 jury trial resulted in a mistrial because the jury could
not reach a verdict. On April 15, 2010, following a second jury trial, the
jury convicted Appellant of rape by forcible compulsion, involuntary deviate
sexual intercourse (“IDSI”) by forcible compulsion, sexual assault, indecent
assault person less than 13 years of age, and corruption of minors. 1 On
August 31, 2010, the trial court sentenced Appellant to concurrent terms of
five to fifteen years’ imprisonment on the rape and IDSI convictions. The
trial court imposed no further penalty for the remaining convictions.
Appellant filed a timely notice of appeal, and this Court affirmed on August
24, 2011.
On August 22, 2012, Appellant filed a counseled PCRA petition and, on
September 24, 2012, he filed an amended PCRA petition and memorandum
of law in support thereof. On October 4, 2013, the Commonwealth filed a
motion to dismiss the PCRA petition. On January 30, 2014, the PCRA court
issued a notice of intent to dismiss the PCRA petition without a hearing
pursuant to Pennsylvania Rule of Criminal Procedure 907. On March 27,
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1
18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(7), and 6301,
respectively.
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2014, the PCRA court dismissed the PCRA petition. On April 17, 2014,
Appellant filed a timely notice of appeal. Both Appellant and the trial court
complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
I. Did the PCRA court err when the court dismissed
Appellant’s petition for post-conviction relief because trial
counsel was ineffective when he failed to object to the
prompt complaint jury instruction?
II. Did the PCRA court err when the court dismissed
Appellant’s petition for post-conviction relief because trial
counsel was ineffective when he failed to motion for a
mistrial when the Commonwealth shifted the burden in its
closing?
Appellant’s Brief at 2 (capitalization omitted).
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing
Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).
For ineffective assistance of counsel claims, the petitioner must
establish: “(1) his underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa.2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244 (quoting
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Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super.2010)). “The
failure to prove any one of the three [ineffectiveness] prongs results in the
failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). “To
demonstrate prejudice, the petitioner must show that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different.’” Spotz, 84 A.3d at 312 (quoting
Commonwealth v. King, 57 A.3d 607, 613 (Pa.2012)). “[A] reasonable
probability is a probability that is sufficient to undermine confidence in the
outcome of the proceeding.” Id. (quoting Commonwealth v. Ali, 10 A.3d
282, 291 (Pa.2014)).
Appellant first alleges his trial counsel was ineffective because he
failed to object to the prompt complaint jury instruction. We disagree.
A “trial court has wide discretion in fashioning jury instructions.”
Commonwealth v. Scott, 73 A.3d 599, 602 (Pa.Super.2013) (quoting
Commonwealth v. Brown, 911 A.2d 576, 583 (Pa.Super.2006)). We
review a jury instruction to determine “whether the trial court committed a
clear abuse of discretion or an error of law which controlled the outcome of
the case.” Id. (quoting Brown, 911 A.2d at 582–83). We “view the charge
as a whole, recognizing that the trial court is free to use its own form of
expression in creating the charge.” Id. (citing Commonwealth v.
Hamilton, 766 A.2d 874, 878 (Pa.Super.2001)). The “key inquiry is whether
the instruction on a particular issue adequately, accurately and clearly
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presents the law to the jury, and is sufficient to guide the jury in its
deliberations.” Id. (quoting Hamilton, 766 A.2d at 878).
A sexual assault victim need not promptly report the crime. 18
Pa.C.S. § 3105. A defendant, however, may introduce evidence of the
victim’s failure to report the crime. Id. “The lack of a prompt complaint by
a victim of a crime, although not dispositive of the merits of the case, may
justifiably produce a doubt as to whether the offense indeed occurred, or
whether it was a recent fabrication by the complaining witness.”
Commonwealth v. Lane, 555 A.2d 1246, 1250 (Pa.1989). “The theory is
based on the principle that a victim of a violent assault would be expected to
complain of the assault at the first safe opportunity.” Commonwealth v.
Snoke, 580 A.2d 295, 300 (Pa.1990) (citing Lane, 555 A.2d at 1246).
Evidence of failure to make a prompt complaint should be considered when
the victim is a child. Lane, 555 A.2d at 1251.
In Snoke, the child victim did not report that her father sexually
assaulted her until 5 months later, after viewing a film at her elementary
school dealing with sexual assault. 580 A.2d at 299. The Supreme Court of
Pennsylvania found the trial court did not err when it denied a delay in
complaint jury instruction, reasoning:
Where no physical force is used to accomplish the
reprehensible assault, a child victim would have no reason
to promptly complain of the wrong-doing, particularly
where the person involved is in a position of confidence.
Where such an encounter is of a nature that a minor victim
may not appreciate the offensive nature of the conduct,
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the lack of a complaint would not necessarily justify an
inference of a fabrication. As the testimony reveals in this
case, the child had no reason to question the character of
the conduct until her subsequent viewing of a film
depicting this type of conduct. It is also significant that
the party involved in the behavior was her father whom
she would naturally trust and accept his judgment as to
the propriety of the act. The encouragement by the father
to maintain the confidence as to this incident also dilutes
any inference drawn merely from a delayed complaint. In
this setting the absence of an immediate outcry would not
in and of itself warrant an inference that the event was a
recent fabrication and, therefore, a charge to that effect
was properly denied by the trial court.
Id. The Supreme Court further stated that it recognized:
[T]hat consideration should be given to factors inherent in
cases involving minor victims which may explain the delay
without reflecting unfavorably on the minor witness’
credibility.
The untimely complaint might be made in order to
protect the truly guilty party, as in the case of a child
blaming an innocent party for the wrongdoing of a
parent. It might be the act of revenge against the
accused prompted by dislike or by an unrelated
dispute between either the minor complainant and
the accused or, possibly, between the family of the
minor complainant and the accused. It is also
possible that the immaturity of the victim would
cause the child not to appreciate the offensiveness of
the encounter and the need for its prompt disclosure.
Id. at 298 (quoting Lane, 555 A.2d at 1250) (emphasis deleted).
Here, the trial court provided the following instruction:
The evidence of [the alleged victim’s] delay in making a
complaint does not necessarily make her testimony
unreliable, but it may remove from it the assurance of
reliability accompanying the prompt complaint. Therefore,
the delay in a complaint should be considered in evaluating
her testimony and deciding whether the act occurred.
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You must not consider the child’s delay in making a
complaint as conclusive evidence that the act did not
occur. Her failure to complain promptly and nature of any
explanation for that failure are factors bearing on the
believability of her testimony and must be considered by
you in light of all the evidence in the case.
And there were explanations given, explanations by her as
to what she was thinking at age five when these things
were happening, and then by other people in the family as
to how much they knew and what they were willing to
share with people; and you heard her story of how these
things happened when she was five, and it wasn’t until she
was talking, she thought, in confidence to a counselor that
she would end up telling anybody about these things.
The Supreme Court of Pennsylvania has said that prompt
complaint, what I’ve just been describing to you, is really
aimed at adults as victims, that an adult victim, that
they’re a victim of a sexual offense, you would expect they
would promptly report that to somebody; because think
what happened to them. They know what happened to
them.
But a child may be different. A five-year-old might not
react or understand what an adult understands. So what
the Supreme Court of Pennsylvania says, where the victim
does not comprehend the offensiveness of the contact at
the time of the occurrence, the absence of an immediate
complaint is understandable.
So you have to think back to what the victim’s explanation
was when she was five years old. What did she think was
being done to her? What was her appreciation of this? Is it
something you would expect a five-year-old to run off and
report to the police? Because that’s what prompt complaint
means, or to some authority figure immediately?
Where no physical force is used to accomplish a sexual
assault, a child victim, like a five-year-old, would have no
reason to promptly complain of the wrongdoing,
particularly where the person involved is in a position of
confidence. Here, what [the alleged victim] was describing
is a close family member, a person in a position of
confidence.
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N.T., 4/14/10, at 105-107.
Isolated portions of the jury instruction implied that, because the
victim was a child, she was not expected to promptly report the abuse. As a
whole, however, the instruction conveyed that the jury should consider the
victim’s delay in reporting the abuse, and any reasons for the delay, to
determine the victim’s credibility and whether the acts occurred. Read as a
whole, this was an adequate, accurate, and clear description of the relevant
law. See Snoke, 580 A.2d at 298-300. The court acted within its discretion
in issuing the instruction.
Because the court acted within its discretion in issuing the instruction,
the claim the instruction was error is meritless and the PCRA court properly
dismissed the ineffective assistance of counsel claim based on the failure to
object to the instruction. See Scott, 73 A.3d at 602; Spotz, 84 A.3d at
311.
Appellant next contends trial counsel was ineffective for failing to seek
a mistrial in response to statements the prosecutor made during closing
arguments. Because a motion for a mistrial would have been unsuccessful,
this claim fails.
A “trial court is vested with discretion to grant a mistrial whenever the
alleged prejudicial event may reasonably be said to deprive the defendant of
a fair and impartial trial.” Commonwealth v. Judy, 978 A.2d 1015, 1019
(Pa.Super.2009) (quoting Commonwealth v. Lettau, 955 A.2d 360, 363
(Pa.Super.2008)). The “court must discern whether misconduct or
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prejudicial error actually occurred, and if so, . . . assess the degree of any
resulting prejudice.” Id. We review an order denying a motion for mistrial
for abuse of discretion. Id.
“In reviewing prosecutorial remarks to determine their prejudicial
quality, comments cannot be viewed in isolation but, rather, must be
considered in the context in which they were made.” Judy, 978 A.2d at
1019 (quoting Commonwealth v. Sampson, 900 A.2d 887, 890
(Pa.Super.2006)). In reviewing prosecutorial remarks and an allegation of
prosecutorial misconduct we must “evaluate whether a defendant received a
fair trial, not a perfect trial.” Id. (citing Commonwealth v. Rios, 721 A.2d
1049, 1054 (Pa.1998)).
A “prosecutor has considerable latitude during closing arguments and
his arguments are fair if they are supported by the evidence or use
inferences that can reasonably be derived from the evidence.” Judy, 978
A.2d at 1020 (quoting Commonwealth v. Holley, 945 A.2d 241, 250
(Pa.Super.2008)). Comments made by a prosecutor must be examined
within the context of defense counsel’s conduct and a “prosecutor may fairly
respond to points made in the defense closing.” Id. (citing Commonwealth
v. Chmiel, 889 A.2d 501, 544 (Pa.2005)). Moreover,
prosecutorial misconduct does not take place unless the
unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias
and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true
verdict.
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Id. (quoting Holley, 945 A.2d at 250). Finally, “[p]rosecutorial misconduct
is evaluated under a harmless error standard.” Id.
At trial, Appellant argued the victim fabricated the assault during her
2008 hospitalization. N.T., 4/14/2010, Vol. 1, 87-88.2 The victim testified
that she thought her conversation with the hospital social worker was
confidential. N.T., 4/13/2010, Vol. 1, at 166-67, 217. Appellant sought to
introduce the statute outlining the mandatory reporting requirements
applicable to various professionals to establish that when the social worker
received the allegation, she had an obligation to report it, even though the
victim thought the conversation was confidential. N.T., 4/14/2010, Vol. 1,
at 87-93. The trial court precluded Appellant from introducing the
mandatory reporting requirement statute. Id. at 92-93.
During Appellant’s closing argument, counsel stated:
What didn’t the Commonwealth do? I submit to you the
last witness is the omission. Where is the social worker?
There’s varying testimony regarding when [the victim]
made these revelations. When did she get released from
the hospital? Where is the social worker? It’s not my job
to produce the social worker. It’s not my job. It’s the
Commonwealth’s job.
N.T., 4/14/10, Vol. 2. at 35.
During its closing argument, the Commonwealth stated:
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2
The certified record contains two transcripts dated April 14, 2010, both
labeled “Trial (Jury) Volume 1.” This Opinion refers to the transcript
containing the testimony of witnesses as Vol. 1 and the transcript containing
closing arguments and instructions as Vol. 2.
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And defense counsel, at some point in his closing
arguments, made reference to the fact that the counselor
is not here. Under the law, there’s a thing called the Health
Information Protection Act. It’s called [Health Insurance
Portability and Accountability Act of 1996 (“HIPPA”)]. And
even though the woman is a mandatory discloser, even
though she was supposed to report this doesn’t mean
everything [the victim] said is not confidential . . . Defense
counsel would have you believe that, yes it’s true, he
doesn’t have a burden to present any evidence at all. He
doesn’t have to call any witnesses. But he has her name
and her phone number.
N.T., 4/14/10, Vol. 2 at 58-59. Defense counsel objected, arguing Appellant
did not have the burden and it was not appropriate for the prosecutor to
argue Appellant could have contacted a witness to testify. Id. at 59. The
trial court ruled that it would instruct the jury to disregard the prosecutor’s
remarks about HIPPA and mandatory reporting, and the remarks about
whether Appellant had access to the information. Id. at 59-60. The trial
court gave the following curative instruction:
There are a couple things you should keep in mind.
Number one, the Commonwealth does not have the
obligation to call every possible witness. For example,
there were police officers involved in this case. You didn’t
hear them testify. That’s not a deficiency in their case.
There may have been any number of people mentioned or
implied during the course of the trial who were not called
to testify. We can’t hold it against the Commonwealth that
they didn’t call those witnesses.
Later on when I instruct you on reasonable doubt, I’ll
explain to you what reasonable doubt is; and there can be
reasonable doubt based on a lack of evidence. But it’s not
reasonable doubt just because there was some witness,
counselor, friends, police officer or detective, somebody
who wasn’t called.
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The DA started talking to you about HIPAA and mandatory
reporters, and I know some of you are probably familiar
with some of those terms if you go to the doctor, you sign
off on a HIPAA waiver or something; and I’m going to tell
you to disregard all of that.
There was no testimony during the course of the trial
involving HIPAA, involving the law of mandatory reporters,
and there was nobody competent called to testify to any of
that. That’s not before you.
There are many statutes in Pennsylvania and there are
many federal laws. If any of them is [sic] relevant, then it
has to be introduced some way into the record and into the
evidence, not brought up for the first time in closing
argument, and I don’t know, I sort of paid attention during
the trial. I don’t remember anybody saying HIPAA until
five minutes ago or anything about mandatory reporters.
So the evidence is what it is, and you’re to disregard that
argument from the District Attorney.
Id. at 61-63. During its instructions prior to jury deliberation, the trial court
stated:
Furthermore, the Defendant is presumed innocent
throughout the trial unless and until you conclude, based
on careful and impartial consideration of the evidence, that
the Commonwealth has proven him guilty beyond a
reasonable doubt.
It is not the Defendant’s burden to prove that he is not
guilty. Instead, it is the Commonwealth that always has
the burden of proving each and every element of the crime
charged and that the defendant is guilty of the crime
beyond a reasonable doubt. The person accused of a
crime is not required to present evidence or prove
anything in his own behalf.
If the Commonwealth’s evidence fails to meet its burden,
then your verdict must be not guilty. On the other hand, if
the Commonwealth’s evidence does prove beyond a
reasonable doubt that the Defendant is guilty, then your
verdict must be guilty.
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N.T., 4/14/10, at 95-96.
Appellant’s claim lacks merit. The prosecutor’s closing argument did
not shift the burden to the defense. It stated Appellant had no burden to
present evidence. To the extent the suggestion that Appellant had the
counselor’s information and could have presented her testimony shifted the
burden, this was cured by the court’s instructions, including the instruction
stating the defendant is presumed innocent, did not have to present
evidence, and the Commonwealth had to prove guilt beyond a reasonable
doubt. Moreover, the Commonwealth’s statement was a fair response to
Appellant’s suggestion that the Commonwealth should have called the
counselor as a witness. Commonwealth v. Williams, 863 A.2d 505, 518
(Pa.2004) (prosecutor’s remark that defendant had opportunity to bring in
and subpoena witnesses was fair response to defense counsel’s remark
regarding “tremendous resources” Commonwealth had to build case);
Commonwealth v. Keaton, 45 A.3d 1050 (Pa.2012) (if challenged remark
is in response to the defense’s closing argument, “it will generally be
deemed fair response and hence permissible comment”); Commonwealth
v. Hawkins, 701 A.2d 492, 509-10 (Pa.1997) (prosecutor’s closing remark
that defendant did not prove someone other than appellant left saliva on the
victim was fair response to defendant’s argument someone other than
appellant left saliva on victim).
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Because the prosecutorial misconduct claim lacks merit, Appellant’s
ineffective assistance of counsel claim also lacks merit. See Spotz, 84 A.3d
at 311.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
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