J-S17019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY SCOTT KNIPPLE,
Appellant No. 901 WDA 2015
Appeal from the PCRA Order May 13, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001796-2007
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 31, 2016
Appellant, Larry Scott Knipple, appeals from the order entered on May
13, 2015, that denied his petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.1
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The Commonwealth’s brief in this matter was due on October 19, 2015.
On that date, the Commonwealth filed a motion for an extension of time in
which to file its brief. In an order filed on October 19, 2015, this Court
granted the motion and directed that the Commonwealth’s brief was due on
or before December 18, 2015. No brief was filed. On January 11, 2016, the
Commonwealth filed a second motion for an extension of time in which to
file its brief. Before this Court could rule on the second motion, the
Commonwealth filed its untimely brief on January 14, 2016. Thus, the
Commonwealth’s second motion for an extension is denied as moot.
Nevertheless, we note our displeasure with the Commonwealth’s failure to
comply with this Court’s order.
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The background of this case was set forth by a prior panel of this Court
as follows:
In 2004, [Appellant] attempted to adopt K.S., a fourth
grade child, from the state of Maine. N.T., 12/8/08, at 130.
When K.S. first moved into [Appellant’s] house, [Appellant] took
him shopping “a lot” and purchased gifts very often. Id. at 132-
33. Thereafter, [Appellant] became obsessed with treating K.S.
like an infant, to the point of wanting to feed K.S. from a bottle.
Id. at 134. At bedtime, [Appellant] began kissing K.S. mostly on
the neck area. Id. K.S. testified at trial that at one point in time,
while K.S. was lying on the couch, [Appellant] laid down beside
him and rested his hand on K.S.’s genitals. Id. at 135. In
another incident, [Appellant] fondled K.S. under the guise of
washing K.S. in the bathtub. Id. at 136.
After K.S. had resided with [Appellant] for about two
weeks, [Appellant] began showing K.S. pornography of young
children engaging in sexual intercourse with other young children
and with adults. Id. at 139, 141. According to K.S., it started out
as a weekly occurrence, then daily, then three times a day. Id.
at 142. Subsequently, [Appellant] engaged in several instances
of anal intercourse with K.S. Id. at 143-46, 159, 162-63.
Three months after moving in with [Appellant], K.S. was
removed from the home, at [Appellant’s] request, and returned
to Maine. Id. at 111-12. While in Maine, [Appellant] visited K.S.,
taking him to ski on the weekends and other activities. Id. at
168. [Appellant] did not assault K.S. in Maine. Id. at 169.
However, [Appellant] bought K.S. an “overabundance of stuff.”
Id. Subsequently, when K.S. was accused of assaulting another
child, K.S. reported the assaults by [Appellant]. Id. at 187.
Prior to trial, [Appellant] sought to compel the discovery of
records from Maine regarding K.S.’s pre-incident behavior, his
prior accusations of sexual assault, and his sexual conduct.
When, after a hearing, the trial court denied discovery and
denied certification of its Order for interlocutory appeal,
[Appellant] filed a Petition for allowance of appeal with this
Court. This Court denied allowance of appeal.
A jury subsequently convicted [Appellant] of [three counts
of rape of a child, three counts of involuntary deviate sexual
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intercourse [(“IDSI”)], and two counts of indecent assault]. After
his conviction, [Appellant] was found to be a sexually violent
predator and thereafter, the Commonwealth filed a Notice of
mandatory sentence. At sentencing, [Appellant’s] IDSI
convictions merged with his convictions for rape of a child. The
trial court imposed consecutive sentences of 120 months to 240
months for each of [Appellant’s] three rape convictions. The
sentence exceeded the 78-month aggravated range, but was
within the statutory maximum range of 240-280 months. The
trial court sentenced [Appellant] to prison terms of 12 to 60
months for each of [Appellant’s] two indecent assault
convictions, with the sentences to be imposed concurrent with
each other but consecutive to [Appellant’s] sentences for his
rape convictions. Thereafter, [Appellant] filed the instant timely
appeal. The trial court ordered [Appellant] to file a Concise
Statement of matters complained of on appeal and [Appellant]
complied with the trial court’s Order.
Commonwealth v. Knipple, 899 WDA 2009, 6 A.3d 566 (Pa. Super. filed
July 19, 2010) (unpublished memorandum at 1-3). After review, this Court
affirmed Appellant’s judgment of sentence. Id. The Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on May 27, 2011.
Commonwealth v. Knipple, 23 A.3d 540 (Pa. 2011).
On May 23, 2012, Appellant filed a timely PCRA petition. The PCRA
court granted Appellant partial relief due to counsel’s failure to file a post-
sentence motion challenging the discretionary aspects of Appellant’s
sentence. PCRA Opinion, 12/6/12, at 8.2 The court denied all other grounds
for PCRA relief pertaining to ineffective assistance of counsel. Id. at 1-8.
____________________________________________
2
In its December 6, 2012 opinion and order, the PCRA court specifically
noted that its decision granted Appellant permission to file a post-sentence
motion nunc pro tunc, but it was “not to be construed as a final PCRA
ruling.” PCRA Opinion, 12/6/12, at 8.
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Thereafter, Appellant was granted permission to file a nunc pro tunc post-
sentence motion to modify his sentence. The trial court held a hearing on
Appellant’s post-sentence motion and found Appellant’s sentence was
“overly harsh.” Order, 3/25/13, at 2. The trial court then resentenced
Appellant to an aggregate term of nineteen and one-half to thirty-nine years
of incarceration. Id.
In an order filed on April 15, 2013, the PCRA court determined that the
March 25, 2013 PCRA and resentencing order was now final. On April 26,
2013, Appellant filed an appeal to this Court asserting claims of ineffective
assistance of counsel and sentencing court error. In disposing of that
appeal, a panel of this Court held that when the trial court resentenced
Appellant, it imposed a new judgment of sentence and that Appellant’s
appeal was a direct appeal only and not an appeal from the denial of PCRA
relief. Commonwealth v. Knipple, 787 WDA 2013, 106 A.3d 173 (Pa.
Super. filed August 22, 2014) (unpublished memorandum at 3-4). The
panel then affirmed Appellant’s judgment of sentence without prejudice to
Appellant’s ability to litigate his ineffectiveness claims, or other cognizable
issues, in a PCRA petition. Id. at 4.
In this convoluted procedural history, it appears that Appellant’s timely
first PCRA petition, filed on May 23, 2012, was held in abeyance until the
entry of the April 15, 2013 hybrid order which both imposed a new sentence
and denied PCRA relief. However, when Appellant attempted to appeal both
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the judgment of sentence and denial of PCRA relief in the April 15, 2013
order, a prior panel of this Court construed the appeal as being solely from
the new judgment of sentence and therefore a direct appeal only. Thus, that
direct appeal was pending when the simultaneous and intertwined attempted
PCRA appeal was filed. Due to confusion caused by the trial court’s hybrid
orders, Appellant was directed by this Court to file a new PCRA petition,
which he did on April 15, 2014, raising issues from his original PCRA
petition. As noted, the PCRA court then denied Appellant’s PCRA petition on
May 13, 2015, and this timely appeal from that order followed.
Appellant’s appeal from the denial of PCRA relief has never been
addressed by this Court despite timely challenges. The reason Appellant’s
PCRA appeal escaped review was due to the hybrid orders of the trial court
which constrained a prior panel of this Court to address the direct appeal
issues only in 2014. Due to this breakdown in the judicial process, we
conclude that this appeal from the denial of PCRA relief is properly before
this Court.
On appeal, Appellant presents the following issues for this Court’s
consideration:
I. Whether the Trial Court Erred In Denying the Claim of
Ineffective Assistance of Counsel For Failure Of Trial Counsel To
Object To The Prosecutor’s Prejudicial and Inflammatory
Statement In Closing Argument wherein the Prosecutor asked
the jury to “Imagine … Sexual Assault/Rape Happening To You”?
II. Whether the Trial Court Erred In Denying the Claim of
Ineffective Assistance of Counsel For Failure of Trial Counsel To
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Request, Prior To Trial, a Competency/Taint Hearing Where
There Was Evidence of Taint?
III. Whether the Trial Court Erred In Denying the Claim of
Ineffective Assistance of Counsel For Failure Of Trial Counsel To
Introduce Any Evidence That [Appellant] Had A Healing Hernia
Scar After The Victim Testified That He Saw No Scars On
[Appellant]?
IV. Whether the Trial Court Erred In Failing To Analyze The
Cumulative Effect Of Trial Counsel’s Ineffectiveness In The
Representation of [Appellant] In This Case?
Appellant’s Brief at 4.
Our standard of review of a trial court order granting or denying relief
under the PCRA requires us to determine whether the decision of the PCRA
court is supported by the evidence of record and is free of legal error.
Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014). “The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
All of Appellant’s issues present averments of ineffective assistance of
counsel. It is well settled that:
a PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “ineffective assistance 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. § 9543(a)(2)(ii).
“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.” [Commonwealth v.] Colavita, 606 Pa. at 21, 993 A.2d
[874 at] 886 (2010) (citing Strickland [v. Washington, 466
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U.S. 668, 104 S.Ct. 2052 (1984))]. In Pennsylvania, we have
refined the Strickland performance and prejudice test into a
three-part inquiry. See [Commonwealth v.] Pierce, [527 A.2d
973 (Pa. 1987)]. Thus, to prove counsel ineffective, the
petitioner must show that: (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. Ali, 608 Pa. 71, 86, 10 A.3d 282,
291 (2010). “If a petitioner fails to prove any of these prongs,
his claim fails.” Commonwealth v. Simpson, [620] Pa. [60],
66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel’s
assistance is deemed constitutionally effective if he chose a
particular course of conduct that had some reasonable basis
designed to effectuate his client’s interests. See Ali, supra.
Where matters of strategy and tactics are concerned, “a finding
that a chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued.” Colavita, 606 Pa. at 21, 993 A.2d
at 887 (quotation and quotation marks omitted). 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.”
Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 613
(2012) (quotation, quotation marks, and citation omitted). “‘A
reasonable probability is a probability that is sufficient to
undermine confidence in the outcome of the proceeding.’” Ali,
608 Pa. at 86–87, 10 A.3d at 291 (quoting Commonwealth v.
Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008) (citing
Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-312 (Pa. 2014).
In his first claim Appellant asserts that the trial court erred in denying
the claim of ineffective assistance of counsel for trial counsel’s failure to
object to the prosecutor’s statement in closing wherein the prosecutor asked
the jury to imagine sexual assault “happening to you.” Appellant’s Brief at
21. We conclude that Appellant’s argument takes the prosecutor’s isolated
comment out of context.
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In Appellant’s counsel’s closing, he challenged the victim’s memory
and called the victim dishonest at least twelve times. N.T., 12/10/08, at 22,
23, 24, 25, 26, 27, 28, 29, 30, 33, 34, and 35. In countering those
challenges to the victim’s veracity and ability to remember specific details of
the earliest sexual assaults, the prosecutor, in her closing, stated as follows:
And then what happens? Then it progresses to
pornography. And if this kid wanted to lie, he’s told you about all
these sex acts. Why doesn’t he describe the pornography like he
described what happened to him? Oh, yeah, I saw -- I saw a
man put his penis inside a kid’s butt and move it in and out;
that’s the kind of stuff I saw. If he’s a liar, that’s what he would
have done.
Out of all the time he saw pornography, he only has one
specific image in his mind, two children undressing each other in
a bathtub out in the grass. That doesn’t sound like a home
photograph. That sounds like child pornography. He could have
made up stuff. He could have. If he’s a big embellisher, there’s a
big opportunity. He can’t remember. It was a long time ago. But
he remembers there was porn.
He tells you about the first time in the bedroom. Is it
gross? Yes. Is it disgusting? Yes. Do you think it’s disgusting to
hear about? Imagine it happening to you.
He tells you about the first time. He’s in the bedroom. The
defendant takes off his clothes. The defendant takes off [K.S.’s]
clothes and his underclothes. He tells him to lay on his bed while
he lays on his belly. The defendant pulls his penis out. He
doesn’t say he anally raped me. He pulled my legs apart. He
climbed up onto the bed between my legs. He pulled my butt
cheeks apart and pushed his penis in my butt and he moved in
and out.
Well, how was he? Where was his body? His chest was
lying on my back. His hands were on my waist. He moved in and
out, and he rolled off of me, and as I’m getting up -- because
this kid is freaked out. He is in pain. He is scared. He’s confused.
They can say whatever they want. He was excited about a dad.
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And if this kid had attachment issues, you think he hadn’t
attached? This kid would have clung to anybody who wanted to
care for him. And he’s getting out of there and, as he gets up, he
sees semen coming out of Mr. Knipple and coming onto his
chest.
Now, he doesn’t sit there and observe it all or measure or
look for the opening in the defendant’s penis. He grabs his stuff
and gets the hell out. And do you think it’s weird to you that he
ran across the street naked and no one saw it? Picture your own
neighborhood. Picture going out to get your newspaper some
morning in your Sponge Bob pajamas or your fluffy slippers, the
times you go out quick and go back in and nobody sees you.
This is evening. Nobody saw him. I wish they would have. He
remembers this because it was traumatic.
He remembers the second time in the bathroom. Let’s go
through it again. Yuck. Yeah, yuck. Let’s go through it again.
[K.S.] had to. He’s in the bathroom urinating. His pants are
already down. The defendant comes in, tells him to get on his
hands and knees, not his belly this time, on his hands and
knees.
This ten year old is on his hands and knees, and he tells
you how [the defendant] got soap, rubbed it on his penis, and
the defendant pushed his penis inside of his butt, into his
rectum, moved in and out and he made moaning sounds. And he
doesn’t remember how long. He’s a liar? Come on, let’s hear it.
And oh, yeah, and then I saw him ejaculate. He’s telling you that
he remembered because it happened.
And then he says it happened more times in the bedroom,
and he was able to say it was anal -- it was anal penetration. I
can remember that, but I can’t remember the details. You’re not
supposed to believe that either.
I have a fabulous analogy. Think hard, whether you’re
married or single. Your first date. If you’re married think about
the first date with your spouse. Think about it. Remember it?
Remember where you went, remember thoughts, feelings.
Tell me about your third date with your spouse or with
somebody that you dated, somebody in your life, maybe your
first love. Tell me what you did on your third date or your fourth.
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What do you mean you don’t remember? Well, you must not
have had a third and fourth date because you’d remember
everything. No, I had a third and fourth date. Same thing. He
knows it happened again in the bedroom. I think it would be
scary if he remembered every surrounding circumstance around
it. That would be what a liar would provide. That would be what
an embellisher would provide.
N.T., 12/10/08, at 50-53.
It is well settled that:
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.
Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa. Super.
2006) (citation omitted). Our review of prosecutorial remarks
and an allegation of prosecutorial misconduct requires us to
evaluate whether a defendant received a fair trial, not a perfect
trial. Commonwealth v. Rios, 554 Pa. 419, 721 A.2d 1049,
1054 (1998). This Court has observed that
in defining what constitutes impermissible conduct
during closing argument, Pennsylvania follows
Section 5.8 of the American Bar Association (ABA)
Standards. Section 5.8 provides:
Argument to the jury.
(a) The prosecutor may argue all reasonable
inferences from evidence in the record. It is
unprofessional conduct for the prosecutor
intentionally to misstate the evidence or mislead the
jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to
express his personal belief or opinion as to the truth
or falsity of any testimony or evidence or the guilt of
the defendant.
(c) The prosecutor should not use arguments
calculated to inflame the passions or prejudices of
the jury.
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(d) The prosecutor should refrain from argument
which would divert the jury from its duty to decide
the case on the evidence, by injecting issues broader
than the guilt or innocence of the accused under the
controlling law, or by making predictions of the
consequences of the jury’s verdict.
Sampson, 900 A.2d at 890, quoting American Bar Association
(ABA) Standards, Section 5.8. In addition, we note the following:
It is well settled that 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. Further, 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. Prosecutorial misconduct is evaluated under
a harmless error standard.
Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super.
2008) (internal citations and quotations omitted). We are further
mindful of the following:
In determining whether the prosecutor engaged in misconduct,
we must keep in mind that comments made by a prosecutor
must be examined within the context of defense counsel’s
conduct. It is well settled that the prosecutor may fairly respond
to points made in the defense closing. Moreover, prosecutorial
misconduct will not be found where comments were based on
the evidence or proper inferences therefrom or were only
oratorical flair.
Commonwealth v. Judy, 978 A.2d 1015, 1019-1020 (Pa. Super. 2009).
Here, however, the isolated comment was a reference to the victim’s
ability to remember specifically an instance of sexual assault. In
Commonwealth v. Rios, 920 A.2d 790 (Pa. Super. 2007), this Court
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explained a similar scenario involving a prosecutor’s reference to one’s
ability to remember an event:
[The appellant] contends that the prosecutor committed
misconduct in stating “if I walk into this door and take out a gun
and take one of you out and blow your brains out, you can
bet....” N.T. 6/15/93 at 603. At this point trial counsel objected
and moved for a mistrial. The court sustained the objection,
instructing the prosecutor not to involve the jury in the case, but
denied the motion for a mistrial. Id. [The appellant] contends,
however, that the prosecutor’s statements violate this Court’s
holding in Commonwealth v. Brown, 489 Pa. 285, 414 A.2d
70, 76 (1980), that “[d]eliberate attempts to destroy the
objectivity and impartiality of the finder of fact so as to cause
the verdict to be a product of the emotion rather than reflective
judgment will not be tolerated.”
An examination of the record shows, however, that the
prosecutor was not attempting to emotionally charge the jury in
hopes of obtaining a verdict based on such emotions. Rather,
this argument was intended to illustrate merely that a witness to
such a violent crime does not easily forget the identity of the
perpetrator. After the trial court sustained the objection, the
prosecutor tempered his argument by rephrasing the argument
as follows: “If I take someone and shoot them [with] several
people looking at me, and I run out, and they don’t have my
fingerprints, they are not going to say I didn’t do it because the
best evidence would be in front of their eyes ...” N.T. 6/15/9[3]
at 603. This makes it clear that the prosecutor was not
intending to inflame the jury, but merely to illustrate that
the situation was such as to make it unlikely that a person
would not be able to later identify the perpetrator. Further,
prosecutorial comments will not require a mistrial “unless the
unavoidable effect of such comments would be to prejudice the
jury, forming in their minds fixed bias and hostility toward the
defendant so that they could not weigh the evidence objectively
and render a true verdict.” Commonwealth v. Carpenter, 511
Pa. 429, 515 A.2d 531, 536 (1986). The statements of which
Appellant complains are not of this character. As such, his
ineffectiveness claim fails.
Rios, 920 A.2d at 809-810 (emphasis added) (footnote omitted).
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We conclude that as in Rios, the prosecutor here was not trying to
inflame the jury in hopes of obtaining a conviction based on emotion. The
challenged comment was a statement regarding memory and one’s ability to
recall certain events. Thus, the prosecution’s statement was a permissible
comment on defense counsel’s attack on the victim’s memory. Therefore,
Appellant’s counsel cannot be deemed ineffective for failing to challenge this
statement because counsel cannot be deemed ineffective for failing to raise
a meritless objection. Commonwealth v. Staton, 120 A.3d 277, 293 (Pa.
2015).
Next, Appellant argues that the PCRA court erred when it refused to
find trial counsel ineffective for failing to request a competency/taint hearing
pursuant to Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003).
Appellant’s Brief at 28. We disagree.
In Delbridge, the Pennsylvania Supreme Court described taint as “the
implantation of false memories or distortion of actual memories through
improper and suggestive interview techniques[.]” Delbridge, 855 A.2d at
30. The Court further explained that pretrial exploration as to whether a
witness’s memory was tainted is necessary “where there is some evidence
that improper interview techniques, suggestive questioning, vilification of the
accused and interviewer bias may have influenced a child witness to such a
degree that the proffered testimony may be irreparably compromised.” Id.
at 39. Accordingly, taint is a legitimate question for examination in cases
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involving complaints of sexual abuse made by young children. Id.
Additionally, the Delbridge Court opined that a competency hearing was the
proper forum for a determination of taint. Id. at 40.
A decision on the necessity of a competency hearing is
addressed to the discretion of the trial court. Commonwealth
v. Washington, 554 Pa. 559, 722 A.2d 643, 646 (1998). The
general rule in Pennsylvania is that every person is presumed
competent to be a witness. Pa.R.E. 601(a). Despite the general
presumption of competency, Pennsylvania presently requires an
examination of child witnesses for competency. Rosche [v.
McCoy, 156 A.2d 307] at 310 [(Pa. 1959)]; Pa.R.E. 601(b). The
test for competency of immature witnesses was set forth in
Rosche:
There must be (1) such capacity to communicate,
including as it does both an ability to understand
questions and to frame and express intelligent
answers, (2) mental capacity to observe the
occurrence itself and the capacity of remembering
what it is that she is called to testify about and (3) a
consciousness of the duty to speak the truth.
Id. (emphasis in original). The capacity of young children to
testify has always been a concern as their immaturity can impact
their ability to meet the minimal legal requirements of
competency. Common experience informs us that children are,
by their very essence, fanciful creatures who have difficulty
distinguishing fantasy from reality; who when asked a question
want to give the “right” answer, the answer that pleases the
interrogator; who are subject to repeat ideas placed in their
heads by others; and who have limited capacity for accurate
memory.
Delbridge, 855 A.2d at 39-40.
A competency hearing concerns itself with the minimal capacity
of the witness to communicate, to observe an event and
accurately recall that observation, and to understand the
necessity to speak the truth. Rosche. A competency hearing is
not concerned with credibility. Credibility involves an assessment
of whether or not what the witness says is true; this is a
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question for the fact finder. Washington, 722 A.2d at 646. An
allegation that the witness’s memory of the event has been
tainted raises a red flag regarding competency, not credibility.
Where it can be demonstrated that a witness’s memory has been
affected so that their recall of events may not be dependable,
Pennsylvania law charges the trial court with the responsibility to
investigate the legitimacy of such an allegation. . . .
Delbridge, 855 A.2d at 40.
Finally, in order to initiate an investigation on the issue of taint, our
Supreme Court explained:
[T]he moving party must show some evidence of taint. Once
some evidence of taint is presented, the competency hearing
must be expanded to explore this specific question. During the
hearing the party alleging taint bears the burden of production of
evidence of taint and the burden of persuasion to show taint by
clear and convincing evidence. Pennsylvania has always
maintained that since competency is the presumption, the
moving party must carry the burden of overcoming that
presumption. As this standard prevails in cases where the
witness’s memory may have been corrupted by insanity, mental
retardation or hypnosis, we see no reason to alter it in cases
where the memory of the witness is allegedly compromised by
tainted interview techniques. Further, as the burden in all other
cases involving incompetency is clear and convincing evidence,
we will continue to apply that existing legal requirement for
cases involving taint. The clear and convincing burden accepts
that some suggestibility may occur in gathering the evidence,
while recognizing that when considering the totality of the
circumstances, any possible taint is sufficiently attenuated to
permit a finding of competency. Finally, as with all questions of
competency, the resolution of a taint challenge to the
competency of a child witness is a matter addressed to the
discretion of the trial court.
Delbridge, 855 A.2d at 40-41 (citations omitted).
Here, the PCRA court addressed Appellant’s claim of error as follows:
[Appellant] now claims that “The question at this point is
not whether taint conclusively existed with regard to the
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victim[,] it is whether [trial counsel] should have requested a
taint hearing to explore the issue of taint.” ([Appellant’s] Brief in
support of PCRA Petition, pg. 23). We disagree. In order to
trigger an investigation of competency on the issue of taint, the
moving party must show some evidence of it. Com. v.
Delbridge, 578 Pa. 641, 855 A.2d 27, 40 (200[3]).
At [the] PCRA hearing, [Appellant] testified that he
viewed a discovery [video] of the Jay, Maine, police interview
with the victim regarding the victim’s relationship with a four
year old boy. [Appellant] stated that he heard the Maine
detectives ask “leading and threatening questions.” (N.T.,
9/5/12, pg. 13.) As [Appellant] stated that he was trained in
questioning children, he wanted his counsel to obtain an expert
to testify on proper questioning techniques for abused or
neglected children. [Appellant] said he was “trained by CASA to
question children in ways that would not be leading but would be
supportive … so they understood that they were not the ones to
blame and the truth was what we really wanted.” Id., pg. 19.
We note that we are alerted to one specifically alleged improper
question - - i.e. “Did [Appellant] do to you what you did to [the
four-year-old boy?]”
Trial counsel enunciated his trial strategy, stating this was
a “One victim case, that’s the issue. And no forensic evidence, it
comes down to credibility.” Id., pg. 34. As to the interviews
with the victim, counsel stated that the “questioning was crude
and certainly not done by somebody who knew what they were
doing.” “There is really no way for me to challenge it.” Id., pg.
35.
We note that [the] PCRA hearing testimony concerned only
the Jay, Maine, interviews. The Maine detectives did not testify
at trial. The trial transcript reveals that trial counsel was
permitted to cross examine the victim regarding his interviews
with Maine and Cambria County police, despite the Court’s
stated misgivings in permitting the line of questioning. (N.T.,
12/8/08, pg. 185, 187-193). The victim also explained, on re-
direct examination, the circumstances of the Maine interviews.
Id., pg. 231-232.
Detective Moore of Cambria County wrote reports based on
an unrecorded interview with the victim. Id., pg. 34. Review of
the trial transcripts reveals that trial counsel successfully
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established on cross examination that Detective Moore did not
believe “there is a right way and wrong way to interview a child.”
(N.T., 12/8/08, pg. 262), and capably challenged Detective
Moore’s credibility while eliciting details about his interaction
with the victim. Id., pgs. 263-269).
Cross-examination techniques employed by counsel will
not be second guessed by the courts, provided that it was based
on a strategic decision made by counsel. Com. v. Thuy, 424
Pa.Super. 482, 623 A.2d 327 (1993). Based on the victim’s and
detective Moore’s testimony, we find no prejudice to [Appellant],
and further find that counsel did not perform deficiently as to
cross-examination on the issue of exploring the interview
techniques conducted by police.
PCRA Court Opinion, 12/6/12, at 4-5.
After review, we find that Appellant failed to establish evidence of taint
in order to be entitled to a competency/taint hearing under Delbridge.
Moreover, Appellant’s counsel’s choice to forgo a competency/taint hearing
was a reasonable strategic decision. On cross-examination, counsel aptly
delved into the victim’s interviews with police and challenged the credibility
of the detective who interviewed the victim in this case. Because we have
decided that counsel’s decision had a reasonable strategic basis, Appellant’s
claim fails. See Commonwealth v. Reed, 42 A.3d 314, 324 (Pa. Super.
2012), appeal denied, 114 A.3d 416 (Pa. 2015) (“If a reasonable basis exists
for the particular course, the inquiry ends and counsel’s performance is
deemed constitutionally effective.”).
Next, Appellant contends that the trial court erred in not finding trial
counsel ineffective for his failure to introduce evidence that Appellant had a
visible, healing hernia scar despite the victim’s testimony that he did not see
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a scar on Appellant. Appellant’s Brief at 36. We conclude that no relief is
due.
On cross-examination, trial counsel asked the victim if he had seen
any tattoos or scars on Appellant’s body. N.T., 12/8/08, at 220. The victim
answered in the negative. Id. In his PCRA petition, Appellant avers that, at
the time the victim lived with him, Appellant had a visible hernia repair scar.
Thus, Appellant posits that if trial counsel had asked Appellant if he had any
scars, Appellant’s response could have impeached the victim’s statement
that he did not notice any scars. Appellant’s Brief at 40.
As stated above, in order to be entitled to PCRA relief, Appellant must
be able to establish that the ineffective assistance of counsel so undermined
the truth-determining process that no reliable adjudication of guilt or
innocence could have taken place, and that but for counsel’s omission, the
result of the proceeding would have been different. Spotz, 84 A.3d at 311-
312. Our Supreme Court has held that “ineffectiveness of counsel claims
may not be raised in a vacuum.” Commonwealth v. Morris, 684 A.2d
1037, 1045 (Pa. 1996) (citations omitted). “A determination of
ineffectiveness cannot be based on conjecture concerning alleged physical
evidence that has never been admitted into evidence.” Id. (emphasis
added). In the case sub judice, Appellant argues that trial counsel failed to
introduce a photograph of the scar as it existed at the time of the alleged
abuse. However, no photograph of the scar was presented to the PCRA
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court. Accordingly, there is no basis for this Court to deduce that trial
counsel’s omission so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place. Id.; 42
Pa.C.S. § 9543(a)(2)(ii). Furthermore, to the extent that Appellant argues
that trial counsel was ineffective in failing to ask him if he had such a scar at
trial, we agree with the PCRA court that Appellant has failed to show
prejudice. We thus discern no error in the PCRA court denying relief on this
claim of error.
Finally, Appellant argues that the trial court erred in failing to analyze
the cumulative effect of the alleged ineffective assistance of counsel. After
review, it is our determination that this assertion is meritless.
Our Supreme Court “has repeatedly held that no number of failed
ineffectiveness claims may collectively warrant relief if they fail to do so
individually.” Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012)
(citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)). The
Supreme Court continued:
Thus, to the extent claims are rejected for lack of arguable
merit, there is no basis for an accumulation claim.
Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640,
671 (2008). When the failure of individual claims is grounded in
lack of prejudice, however, then the cumulative prejudice from
those individual claims may properly be assessed. Johnson, 966
A.2d at 532 (citing Commonwealth v. Perry, 537 Pa. 385, 644
A.2d 705, 709 (1994), for the principle that a new trial may be
awarded due to cumulative prejudice accrued through multiple
instances of trial counsel’s ineffective representation).
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Koehler, 36 A.3d at 161. Accordingly, we must address our conclusions
with respect to Appellant’s first three issues.
In Appellant’s first issue, he argued that counsel was ineffective for
failing to object to allegedly inflammatory remarks made by the prosecution
in closing. We found this claim was meritless. Next, we determined that
Appellant’s second allegation of ineffectiveness, which was based on
counsel’s failure to pursue a taint hearing pursuant to Delbridge, was also
meritless. We found that trial counsel had a reasonable basis for not
pursuing the taint hearing and that Appellant failed to establish that a taint
hearing was even proper. Finally, in Appellant’s third issue, wherein he
asserted that trial counsel was ineffective for failing to introduce a
photograph of a hernia repair scar or to question him at trial about such a
scar, we concluded that Appellant did not establish ineffectiveness because
no photograph of this scar was introduced at the PCRA hearing and that
Appellant was not prejudiced by the failure to question him about the scar at
trial. Therefore, all of Appellant’s claims were rejected for lack of merit
except for the failure to ask him about the scar. However, while we
concluded that Appellant was not prejudiced by trial counsel’s failure to
question him regarding the scar, this single finding does not provide a basis
for an accumulation of prejudice claim. Koehler, 36 A.3d at 161.
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For the reasons stated in the foregoing, we conclude that Appellant is
entitled to no relief. Accordingly, we affirm the order denying Appellant’s
PCRA petition.
Order affirmed.
P.J. Gantman and Justice Fitzgerald Concur in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2016
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