J-S79027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES LORRAINE SCOTT
Appellant No. 111 EDA 2016
Appeal from the Judgment of Sentence November 13, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000027-2015
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED JANUARY 25, 2017
James Lorraine Scott appeals from the judgment of sentence entered on
November 13, 2015 by the Chester County Court of Common Pleas. We affirm
the judgment of sentence and dismiss Scott’s ineffective assistance of counsel
claims without prejudice.
The trial court summarized the relevant procedural history of this matter
as follows:
On July 20, 2015, a bench trial was held and at the
conclusion, this Court found [Scott] guilty of Indecent Assault
(18 Pa.C.S.A. §3126(a)(1)). At the bench trial [Scott] was
represented by Anthony F. List, Esquire. [Scott] retained
current counsel, Carson B. Morris, Esquire, on August 14,
2015. On November 13, 2015, immediately prior to
sentencing, [Scott] made an oral Motion for Extraordinary
Relief pursuant to Pa.R.Crim.P. 704(B) contending that a new
trial was necessary due to newly discovered evidence that
[Scott] suffers from Asperger’s Syndrome and that his trial
counsel was ineffective when he failed to present evidence of
[Scott’s] condition and failed to file a Motion to Suppress
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[Scott’s] statement to local law enforcement. (N.T.,
11/13/15, p. 4, ll. 4-18). The oral Motion for Extraordinary
Relief was denied and [Scott] was sentenced to 5-23 months
of incarceration and ordered to register as a sex offender for
15 years pursuant to 42 Pa.C.S.A. §9799.14 and
§9799.15(a)(1).
On November 18, 2015, [Scott] filed a Bail Motion along
with a Post-Sentence Motion for a New Trial. In his Motions
for a New Trial, [Scott] again raised a Post-Conviction Relief
Act (“PCRA”) claim of ineffective assistance of counsel as
“extraordinary” and within the prerequisites set forth in
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).
[Scott’s] Post-Sentence Motion for New Trial was denied on
December 2, 2015 and his Motion for Bail was granted on
December 3, 2015.
On December 31, 2015, [Scott] appealed our judgment of
sentence and our denial of his Post-Sentence Motion for New
Trial. Our Rule 1925(b) Order was docketed on January 4,
2016 and [Scott’s] Concise Statement was filed timely on
January 21, 2016.
Rule 1925(a) Opinion, 2/29/16, at 1-2 (“1925(a) Op.”).
Scott raises the following issues on appeal:
DID THE LOWER COURT ERR IN RULING THAT APPELLANT’S
CONVICTION WAS NOT THE RESULT OF THE INEFFECTIVE
ASSISTANCE OF HIS TRIAL COUNSEL WHEN COUNSEL
FAILED TO MOVE TO SUPPRESS THE STATEMENT APPELLANT
GAVE TO LAW ENFORCEMENT WHEN THIS STATEMENT WAS
INVOLUNTARILY GIVEN AND OTHERWISE INADMISSIBLE
DUE TO APPELLANT’S ASPERGER’S SYNDROME?
DID THE LOWER COURT ERR IN DENYING APPELLANT'S
CLAIM THAT SHOULD TRIAL COUNSEL NOT BE DEEMED
INEFFECTIVE FOR FAILING TO REALIZE HIS CLIENT
SUFFERED FROM ASPERGER’S SYNDROME, UNDERSIGNED
COUNSEL’S DISCOVERY OF APPELLANT’S CONDITION
CONSTITUTED AFTER-DISCOVERED EVIDENCE WARRANTING
THE GRANT OF A NEW TRIAL?
Scott’s Br. at 4.
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Scott argues that trial counsel was ineffective on two grounds: 1) for
failing to move to suppress the statement Scott gave to police in light of Scott’s
diagnosis of Asperger’s Syndrome; and 2) to the extent counsel was unaware
that Scott had Asperger’s Syndrome, for failing to investigate. Scott’s Br. at
13-14. Before addressing the merits of Scott’s ineffectiveness claims, we first
address whether his claims are properly before this Court.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), “[o]ur Supreme
Court determined that, absent certain circumstances, ‘claims of ineffective
assistance of counsel are to be deferred to [Post Conviction Relief Act] review;
trial courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal.’”
Commonwealth v. Harris, 114 A.3d 1, 5 (Pa.Super. 2015) (quoting Holmes,
79 A.3d at 576); see also Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.
2002) (“[A]s a general rule, a petitioner should wait to raise claims of
ineffective assistance of trial counsel until collateral review.”). The Holmes
Court recognized two exceptions to this general rule:
We recognize two exceptions [to the general rule] both
falling within the discretion of the trial judge. First, we
appreciate that there may be extraordinary circumstances
where a discrete claim (or claims) of trial counsel
ineffectiveness is apparent from the record and meritorious
to the extent that immediate consideration best serves the
interests of justice; and we hold that trial courts retain their
discretion to entertain such claims.
Second, with respect to other cases and claims . . . where
the defendant seeks to litigate multiple or prolix claims of
counsel ineffectiveness, including non-record-based claims,
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on post-verdict motions and direct appeal, we repose
discretion in the trial courts to entertain such claims, but only
if (1) there is good cause shown,1 and (2) the unitary review
so indulged is preceded by the defendant’s knowing and
express waiver of his entitlement to seek PCRA review from
his conviction and sentence, including an express recognition
that the waiver subjects further collateral review to the time
and serial petition restrictions of the PCRA.2 In other words,
we adopt a paradigm whereby unitary review may be
available in such cases only to the extent that it advances
(and exhausts) PCRA review in time; unlike the so-called
[Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003)]
exception, unitary review would not be made available as an
accelerated, extra round of collateral attack as of right. This
exception follows from the suggestions of prior Court
majorities respecting review of prolix claims, if accompanied
by a waiver of PCRA review.
1
...[I]n short sentence cases the trial court’s
assessment of good cause should pay particular
attention to the length of the sentence imposed and
the effect the length of the sentence will have on the
defendant’s realistic prospect to be able to avail
himself of collateral review under the PCRA.
2
Unitary review describes the defendant’s ability to
pursue both preserved direct review claims and
collateral claims of trial counsel ineffectiveness on
post-sentence motions and direct appeal, and could
aptly describe both exceptions we recognize today.
However, for purposes of this appeal, we intend the
term only to describe the second exception, i.e., that
hybrid review which would encompass full-blown
litigation of collateral claims (including non-record-
based claims).
Holmes, 79 A.3d at 563–64 (some citations omitted).
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The trial court did not address whether extraordinary circumstances
warranting immediate consideration of Scott’s ineffectiveness claims existed,1
nor did it address whether unitary review was appropriate. Based on our
review of the record, we conclude that extraordinary circumstances do not exist
here. Thus, the first exception to the general rule deferring such claims to
PCRA review does not apply. Scott also argues that this case is a “short
sentence” case warranting unitary review. Scott’s Br. at 1-2. Scott, however,
did not knowingly and expressly waive his right to PCRA review.2 Thus, the
unitary review exception does not apply.
Accordingly, the trial court should not have considered the merits of the
ineffectiveness claims raised in Scott’s post-sentence motion. Therefore, we
dismiss Scott’s claims of ineffectiveness of counsel without prejudice to his right
to raise these claims in a timely filed PCRA petition. See Commonwealth v.
Burno, 94 A.3d 956, 971 (Pa. 2014) (concluding that appropriate disposition of
collateral claims for ineffectiveness of counsel improperly entertained by trial
court is dismissal of claims without prejudice to appellant’s right to pursue them
under PCRA).
____________________________________________
1
In fact, the trial court found that Scott’s ineffectiveness claims lacked
merit.
2
We also note that Scott is currently on bail pending the instant
appeal.
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Scott next argues that the trial court erred in denying his motion for a
new trial based on a claim of after-discovered evidence, where the alleged
after-discovered evidence is Scott’s diagnosis of Asperger’s Syndrome.
A trial court should grant a motion for new trial on the
ground of after-discovered evidence where producible and
admissible evidence discovered after trial (1) could not have
been obtained prior to the end of trial with the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative evidence; (3) is not merely impeachment
evidence; and (4) is of such a nature that its use will likely
result in a different verdict on retrial. In reviewing the trial
court’s determination in this regard, this Court affirms unless
the determination constitutes an abuse of discretion.
Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (internal citations
omitted).
The trial court addressed this claim in its opinion and properly concluded
that Scott was not entitled to a new trial. As the trial court explained:
[Scott] cannot meet his burden as he fails to meet the
very first requirement, that the evidence claimed, [Scott’s]
Asperger’s Syndrome, is newly discovered evidence. By his
own admission, [Scott] was aware of his mental, emotional,
and behavioral problems as a child when he attended a
special educational school and was aware of the specific
diagnoses of Asperger’s Syndrome after being diagnosed by
a physician prior to obtaining his massage therapy license.
Specifically, [Scott] requested, and was granted, special
accommodations in taking his massage licensure test. (N.T.,
11/13/15, p. 5, ll. 18 – p. 6, l. 3). [Scott] was aware of his
conditions, its limitations, and exercised his right to
accommodations long before his interview with law
enforcement. As a result, there is no reasonable explanation,
and [Scott] has not offered one, as to why [Scott] could not
have produced the evidence of his diagnosis at or before his
bench trial. Commonwealth v. Jones, 402 A.2d 1065, 1066
(Pa. Super. 1979). Additionally, our courts have held that a
defendant has a duty to bring forth any relevant evidence on
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his behalf. Commonwealth y. Johnson, 323 A.2d 295, 296
(Pa.Super. 1974). Thus, [Scott] cannot now claim that his
diagnosis is “newly discovered” evidence warranting a new
trial.
1925(a) Op. at 5.
Judgment of sentence affirmed. Ineffective assistance of counsel claims
dismissed without prejudice. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
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