J-S35024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BROCK P. LYLES
Appellant No. 2667 EDA 2014
Appeal from the PCRA Order August 14, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015909-2009
BEFORE: MUNDY, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 17, 2015
Appellant, Brock P. Lyles, appeals from the August 14, 2014 order
dismissing his first petition filed under the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court accurately summarized the factual background of this
case as follows:
[Victim] met [Appellant] at a “worship concert” in 1998 when he
was [12] years old and [Appellant] was at least [21] years of
age. [Victim] approached [Appellant] and asked him if he would
be willing to serve as his “role model” or “father figure.”
[Appellant] acceded to the request and went on to meet
[Victim]’s mother and grandmother in his attempt to establish a
relationship with the family.
Within a few months, [Appellant] began to pick up [Victim] from
his home, and they drove around the city and conversed. On
each of those occasions, [Victim] testified that [Appellant] would
hold his hand and would fondle him. [Appellant] also took him
to an apartment, and though they were ostensibly there for
* Retired Senior Judge assigned to the Superior Court
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[Appellant] to help him with his homework, the fondling resumed
and began to escalate.
While at this apartment, [Appellant] requested that [Victim]
perform oral sex on him. [Victim] complied, and stopped after a
short while. [Appellant] then drove him home to West
Philadelphia. A few weeks later, [Appellant] picked up [Victim]
again, and he was taken to another apartment. While there,
[Appellant] shaved [Victim]’s pubic area, watched him take a
shower, and had him perform oral sex on him again. When that
was completed, [Appellant] attempted to penetrate [Victim]’s
anus with his penis but was unable to do so. After the two of
them got dressed, [Appellant] drove him back home.
There was a limited amount of contact after the incident in the
second apartment. Though [Appellant] came to [Victim]’s home
on several occasions to see him, he would tell his mother and
grandmother to tell [Appellant] that he was not at home. After
two or three years, [Appellant] stopped making any effort to
meet with [Victim].
In September of 2009, [Victim] was at a “praise and worship
conference” and saw [Appellant] there. He became extremely
upset as the memories of the sexual encounters came back to
him. After agonizing over these memories for a few weeks,
[Victim] ended up at the waterfront at Penn’s Landing with the
intention of committing suicide. After he was literally talked “off
of the ledge” there, he was taken to a police station where he
gave a complete statement on October 22, 2009, to the police as
to the sexual action[s] that were directed at him over the years
by [Appellant]. . . .
On two occasions, September 9th and December 14th 2009,
[Appellant] gave statements to the detectives assigned to the
case who were assisted in their investigation by secret service
agents. In his first statement, he denied having any type of
“inappropriate” physical contact with [Victim]. He contended
that he broke off the mentoring relationship with [Victim] after a
short period of time [] because of the many issues and “family
drama” that surrounded [Victim].
In his second statement, [Appellant] admitted that [Victim] did
“perform oral sex on me.” He claimed that it was [Victim]’s idea
to do so, and that it was “a very foolish mistake” despite the fact
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that he thought that [Victim] was [18] years of age at the time.
However, [Appellant] also said in that same statement that he
thought [Victim] was [16], and also indicated that he actually
thought that [Victim] was [14] years old.
When [Appellant] testified at his trial, he admitted that he told
the agents that [Victim] had performed oral sex on him.
However, in his trial testimony, he contended that it never
happened, and that he only said it did because he “was under
emotional and psychological duress.”
Trial Court Opinion, 7/14/11, at 3-5.
The procedural history of this case is as follows. On January 7, 2010,
Appellant was charged via criminal information with rape of an individual
under 13 years old,1 involuntary deviate sexual intercourse with an
individual under 13 years old (“IDSI”),2 unlawful contact with a minor,3
aggravated indecent assault,4 statutory sexual assault,5 sexual assault,6
corruption of minors,7 indecent assault,8 indecent exposure,9 and two counts
1
18 Pa.C.S.A. § 3121(a)(6).
2
18 Pa.C.S.A. § 3123(a)(6).
3
18 Pa.C.S.A. § 6318(a)(1).
4
18 Pa.C.S.A. § 3125(a)(1).
5
18 Pa.C.S.A. § 3122.1.
6
18 Pa.C.S.A. § 3124.1.
7
18 Pa.C.S.A. § 6301(a)(1).
8
18 Pa.C.S.A. § 3126(a)(1).
9
18 Pa.C.S.A. § 3127(a).
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of simple assault.10 On May 17, 2010, at the conclusion of a non-jury trial,
Appellant was found guilty of IDSI, unlawful contact with a minor, sexual
assault, and corruption of minors. The remaining charges were nolle
prossed. On September 2, 2010, Appellant was sentenced to an aggregate
term of 7 to 14 years’ imprisonment. Appellant filed a direct appeal;
however, on August 15, 2011, that appeal was discontinued.
On February 15, 2012, Appellant filed a pro se PCRA petition. On June
14, 2012, counsel was appointed. On July 16, 2013, counsel filed an
amended PCRA petition. On June 12, 2014, the PCRA court issued notice of
its intent to dismiss the petition without an evidentiary hearing. See
Pa.R.Crim.P. 907. On August 14, 2014, the PCRA court dismissed
Appellant’s PCRA petition. This timely appeal followed.11
Appellant presents one issue for our review
[Was trial counsel ineffective for failing to argue that Appellant’s
right to due process was violated because of the vague nature of
the evidence presented at trial]?
Appellant’s Brief at 8.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
10
18 Pa.C.S.A. §§ 2701(a)(1), 2701(a)(3).
11
On October 1, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On October 21, 2014, Appellant filed his concise
statement. On January 12, 2015, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.
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Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal
quotation marks and citation omitted). “In PCRA appeals, our scope of
review is limited to the findings of the PCRA court and the evidence on the
record of the PCRA court’s hearing, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
779 (Pa. Super. 2015) (en banc) (internal quotation marks and citations
omitted).
Appellant claims that trial counsel rendered ineffective assistance by
failing to argue that the evidence was too vague to satisfy the procedural
due process requirements of the state and federal constitutions.
Specifically, he argues that his trial counsel should have moved for arrest of
judgment because Victim was unable to specify the dates on which the
sexual assaults occurred. He also argues that trial counsel’s failure to object
to the lack of specificity as to the dates prevented Appellant from raising and
proving alibi defenses. Our Supreme Court has explained:
[T]o prove counsel ineffective, [a PCRA] petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s actions or failure to
act; and (3) the petitioner suffered prejudice as a result of
counsel’s error such that there is a reasonable probability that
the result of the proceeding would have been different absent
such error. Counsel is presumed to have rendered effective
assistance.
A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.
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Finally, counsel cannot be deemed ineffective for failing to raise
a meritless claim.
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations
omitted).
We conclude that Appellant’s underlying claim lacks arguable merit. In
Commonwealth v. Fanelli, 547 A.2d 1201, 1203 (Pa. Super. 1988) (en
banc), abrogated on other grounds, Commonwealth v. Hutchinson, 556
A.2d 370 (Pa. 1989), the defendant argued that his due process rights were
violated because a child victim could not give specific dates that a sexual
assault occurred. This Court explained:
We consider [Commonwealth v.] Devlin[, 333 A.2d 888 (Pa.
1975),] to be the polestar in our assessment of whether the
appellant’s due process argument is to give way in favor of the
child-victim’s right to have her assault brought to justice. In
Devlin, our Supreme Court opted for a balancing approach to
resolve conflicting interests of the accused vis-a-vis the victim
when it came to the specificity required to be proven as to the
time-frame of the alleged crime. It wrote:
Here, as elsewhere, [t]he pattern of due process is picked
out in the facts and circumstances of each case. Due
process is not reducible to a mathematical formula.
Therefore, we cannot enunciate the exact degree of
specificity in the proof of the date of a crime which will be
required or the amount of latitude which will be
acceptable. Certainly the Commonwealth need not always
prove a single specific date of the crime. Any leeway
permissible would vary with the nature of the crime and
the age and condition of the victim balanced against the
rights of the accused.
Fanelli, 547 A.2d at 1204, quoting Devlin, 333 A.2d at 892 (internal
quotation marks and citations omitted).
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In Devlin, our Supreme Court concluded that the defendant’s due
process rights were violated when the victim could only give a 14-month
window during which the assaults occurred. Devlin, 333 A.2d at 892. Our
Supreme Court came to this conclusion in one sentence, without any further
analysis. See id. As noted above, however, Devlin did not create a bright
line rule regarding the degree of specificity required for the date of an
attack. In subsequent cases interpreting Devlin, this Court has consistently
held that time frames such as the one offered by Victim in the case at bar
were not too vague as to violate the defendants’ procedural due process
rights. Cf. Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa. Super.
2007), appeal denied, 944 A.2d 756 (Pa. 2008) (“Subsequent case law has
refined the holding in Devlin.”).
In Fanelli, like in the case at bar, the victim gave a one-year time
frame during which the assaults occurred. Fanelli, 547 A.2d at 1204. This
Court, sitting en banc, held that under the totality of the circumstances the
evidence was not too vague as to violate the defendant’s procedural due
process rights. Specifically, this Court relied upon the victim’s lack of family
support. See id. The same is true in the case at bar. As noted above,
Victim sought out Appellant to serve as a father figure because he lacked a
male role model. Furthermore, in his first statement to police Appellant
stated that he terminated his relationship with Victim because of “family
drama.” Although the victim in Fanelli was younger than Victim, this Court
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relied upon a case in which the victim was approximately the same age as
Victim. Id. at 1205, citing Tapp v. Indiana, 269 N.E.2d 367, 369 (Ind.
1971) (victim was 11 years old).
This Court also addressed a due process challenge in Commonwealth
v. Bethlehem, 570 A.2d 563 (Pa. Super. 1989), abrogated on other
grounds, Commonwealth v. Gerstner, 656 A.2d 108 (Pa. 1995). In
Bethlehem, the criminal complaint alleged that there was a continuing
pattern of sexual abuse over a two-year time period. Bethlehem, 570 A.2d
at 567. This Court held that was sufficient to satisfy the procedural due
process requirements of the state and federal constitutions. See id. at 567-
568. The same situation is present in the case sub judice. Victim stated
that there was a continuing pattern of sexual abuse over an extended time
period. Although Victim was not able to provide specific dates, he was able
to limit it to a one-year time period. See also Commonwealth v. Groff,
548 A.2d 1237, 1242 (Pa. Super. 1988) (citations omitted) (“Case law has
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.”).
More recently, in Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super.
2010), appeal denied, 21 A.3d 1189 (Pa. 2011), this Court rejected a due
process challenge similar to the challenge raised by Appellant. In Brooks,
this Court held that “neither [Devlin nor Groff] holds that due process
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requires a victim of sexual abuse to provide temporal testimony of specific
incidents that occurred during a prolonged period of abuse.” Id. at 859.
Thus, to the extent that Appellant argues that Victim was required to provide
more specific details regarding the dates of the assaults in the apartments,
that argument is without merit. Instead, the Commonwealth was merely
required to prove that the assaults occurred within the applicable statute of
limitations period. The Commonwealth fulfilled this obligation with Victim’s
testimony. See also Pa.R.Crim.P. 560(B)(3) (a criminal information “shall
be valid and sufficient in law if it contains . . . an allegation that it was
committed on or about any date fixed within the statute of limitations[.]”).
Finally, in Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super.
1980), the criminal information alleged that the sexual assaults occurred
sometime over a five-year period. Id. at 1373. This Court held that such a
wide timeframe did not violate the defendant’s right to procedural due
process. Id. at 1373-1374. In so holding, this Court relied upon the fact
that it was not a single assault and that the victim’s right to have her
attacker brought to justice outweighed any due process concerns. See id.
In the case at bar, Victim was able to narrow the timeframe during which
the assaults occurred to a single year – a much shorter timeframe than in
Niemetz.
When considering the totality of the circumstances in the instant case,
Appellant’s due process rights were not violated. Victim was young when
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the sexual assaults occurred. He lacked a supportive family structure in
which he could have found guidance and support regarding the encounters.
Appellant did not abuse Victim on a single occasion, rather, Appellant
engaged in a continuing pattern of abuse. Therefore, Appellant was not
prevented from advancing an alibi defense as he could have attempted to
prove that he was not in Philadelphia during that time period. In any event,
the viability of an alibi defense was substantially diminished not so much by
the time period over which the abuse occurred, but by Appellant’s own
inculpatory admission to investigators. Accordingly, under the Devlin
balancing test, Appellant’s right to procedural due process was not violated.
As Appellant’s underlying claim lacks arguable merit, the PCRA court
correctly dismissed his PCRA petition without an evidentiary hearing.
Order affirmed.12
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2015
12
On July 8, 2015, we ordered the Commonwealth to furnish the PCRA court
with a copy of the trial exhibits admitted at Appellant’s trial on or before July
16, 2015. As of August 24, 2015, the Commonwealth failed to comply with
our order. We have therefore resolved this case on the basis of the certified
record in our possession. We lift the obligation to further comply with our
July 8, 2015 order as it is now moot. We find that the Commonwealth has
waived any arguments related to the exhibits admitted at trial for failing to
comply with this Court’s July 8, 2015 order.
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