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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD A. BRYANT :
:
Appellant : No. 1929 EDA 2019
Appeal from the PCRA Order Entered June 25, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009955-2012
BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: Filed: November 5, 2020
Richard A. Bryant appeals from the order, entered in the Court of
Common Pleas of Philadelphia County, denying his petition for relief pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
our review, we affirm.
Following a four-day jury trial, Bryant was convicted of rape of a child,1
aggravated indecent assault,2 endangering the welfare of children,3 corruption
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1 18 Pa.C.S.A. § 3121(c).
2 18 Pa.C.S.A. § 3125(b).
3 18 Pa.C.S.A. § 4304.
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of minors,4 and indecent assault of a person less than 13 years of age.5 The
victim, A.B., was the five-year-old niece of Bryant’s girlfriend.
The trial court sentenced Bryant to a term of seventeen to thirty-four
years’ incarceration. On direct appeal, this Court affirmed Bryant’s judgment
of sentence. Commonwealth v. Bryant, 2226 EDA 2015 (Pa. Super. filed
Nov. 7, 2016) (unpublished memorandum). The Pennsylvania Supreme Court
denied Bryant’s petition for allowance of appeal. Commonwealth v. Bryant,
496 EAL 2016 (Pa. filed April 11, 2017).
On July 14, 2017, Bryant filed a pro se PCRA petition. The PCRA court
appointed counsel, who filed an amended petition on May 25, 2018. The
Commonwealth filed a motion to dismiss Bryant’s petition on November 26,
2018, and Bryant filed a response in opposition on January 28, 2019. On May
21, 2019, the PCRA court sent notice of intent to dismiss Bryant’s petition
without a hearing pursuant to Pa.R.Crim.P. 907. Bryant filed a timely
response to the Rule 907 notice and, on June 25, 2019, the PCRA court
dismissed Bryant’s petition without a hearing. This timely appealed followed
on July 9, 2019. Both Bryant and the PCRA court have complied with Pa.R.A.P.
1925.
Bryant raises the following issues for our review:
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4 18 Pa.C.S.A. § 6301.
5 18 Pa.C.S.A. § 3126(a)(7).
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1. Whether the PCRA court erred in not finding trial counsel
ineffective for failing to object to the violation of the
Confrontation Clause?
2. Whether the PCRA court erred in not finding trial counsel
ineffective for failing to preserve the argument that the
court interfered with the right to show bias and prejudice on
the part of [the victim’s] mother?
3. Whether the PCRA court erred when it did not grant an
evidentiary hearing on all issues of ineffective assistance of
counsel presented in the PCRA petition?
4. Whether the PCRA court erred in not finding that the
conviction was obtained and sentence imposed in violation
of the Due Process Clause of the Fourteenth Amendment to
the Constitution of the United States?
5. Whether the conviction was obtained and sentence imposed
in violation of a statute that was not in effect on the date of
the alleged crime?
Appellant’s Brief, at 2.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court's findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
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Moreover, “[t]here is no absolute right to an evidentiary hearing
on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing
is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906
(Pa. Super. 2008), [] (citing Commonwealth v. Barbosa, 819
A.2d 81 (Pa. Super. 2003)); Pa.R.Crim.P. 907(2). A reviewing
court must examine the issues raised in the PCRA petition in light
of the record in order to determine whether the PCRA court erred
in concluding that there were no genuine issues of material fact
and in denying relief without an evidentiary hearing.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super.
2001) (citation omitted).
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). See
Commonwealth v. Clark, 961 A.2d 80, 85 (Pa. 2008) (where PCRA petition
does not raise genuine issue of material fact, reviewing court is not required
to hold evidentiary hearing on petition); Commonwealth v. Payne, 794 A.2d
902, 906 (Pa. Super. 2002) (right to hearing is not absolute; PCRA court may
deny petition without hearing if it determines claims raised are without merit).
See also Pa.R.Crim.P. 907(1).
Where the PCRA court concludes that a petition does not raise any
genuine issues of material fact, and dismisses it without a hearing, we review
for an abuse of discretion. Commonwealth v. Simpson, 66 A.3d 253, 260–
61 (Pa. 2013) (citing Commonwealth v. Collins, 888 A.2d 564, 579 (Pa.
2005)).
An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill[-]will or partiality, as shown by the evidence of
record. Furthermore, if in reaching a conclusion the trial court
[overrides] or misapplies the law, discretion is then abused and it
is the duty of the appellate court to correct the error.
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Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014)
(internal citations and quotation marks omitted). After our independent
review of the record, we find no abuse of discretion.
Bryant first claims trial counsel was ineffective for failing to raise a
Confrontation Clause objection to the admission of the victim’s hospital
records and the testimony of the Commonwealth’s expert, Philip V. Scribano,
D.O., who was not the examining physician, but testified with respect to the
victim’s records. Doctor Scribano, the attending physician of the Center for
Child Protection and Health at Children’s Hospital of Philadelphia (CHOP),
reviewed the victim’s February 25, 2004 emergency department medical
record from CHOP. He testified that in his opinion, the examination findings,
which were non-specific and based on the chief complaint of genital irritation,
were consistent with sexual abuse. N.T. Jury Trial, 1/29/15, at 63. As Dr.
Scribano explained, the majority of sexual abuse cases show little trauma
because most are not brought in within 72 hours, and the mucus membrane
of the vaginal area heals quickly. Id. at 51-72. Bryant argues that since Dr.
Scribano did not examine the victim, his testimony with respect to the victim’s
medical record was a violation of the Confrontation Clause of the Sixth
Amendment.
In all criminal prosecutions, the accused shall enjoy “the right . . . to be
confronted with the witnesses against him.” U.S. Const. Amend. VI. The
Confrontation Clause applies to witnesses against the accused—in other
words—those who bear testimony. See Crawford v. Washington, 541 U.S.
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36, 54, (2004) (defining testimonial statements as, inter alia, “ex parte in-
court testimony or its functional equivalent,” including affidavits “or similar
pretrial statements that declarants would reasonably expect to be used
prosecutorially[.]”). In order for a testimonial document to be admissible, the
witness who prepared it must testify at trial, unless he or she is unavailable
and the defendant had a prior opportunity for cross-examination.
Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super. 1993) (en banc).
Here, the hospital records were not prepared for the purpose of
litigation; they were made in the ordinary course as a result of the victim’s
emergency room visit. See Commonwealth v. Brown, 139 A.3d 208 (Pa.
Super. 2016) (document is testimonial if its primary purpose is created or
given under circumstances which would lead objective witness to reasonably
believe that document or statement would be available for use at later trial).
The hospital records were admitted under the business records exception to
the hearsay rule to show the fact of the victim’s hospitalization, her complaint
or symptoms, and the treatment prescribed for her. See Pa.R.E. 803(4).
The records indicated that the victim was brought to the hospital for vaginal
itching and painful urination, conditions her mother believed were related to
the detergent she used to wash clothes. N.T. Jury Trial, supra at 54-55. The
examination was normal, and it was neither proof of sexual assault nor the
absence of sexual assault. Id. at 63 (“The most common examination finding
in a child of sexual assault is a normal examination or non-specific
examination with irritation. So this would be consistent.”). Because the
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records were for the primary purpose of treatment, they were not testimonial.
See Commonwealth v. Hemingway, 118, 534 A.2d 1104, 1107 (Pa. Super.
1987); see also Xiong, supra (notation in physician’s report that victim had
“no hymen” was factual assertion rather than diagnosis or opinion for
purposes of Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108).
We conclude that Bryant’s claim is meritless. Counsel, therefore, was
not ineffective for failing to raise a Confrontation Clause objection. See
Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001) (counsel will not be
deemed ineffective for failing to raise meritless claim).
Next, Bryant claims counsel was ineffective for failing to preserve the
argument that the trial court interfered with his right to show bias and
prejudice on the part of the victim’s mother by limiting cross-examination with
respect to an unrelated criminal incident involving the arrests of the victim’s
father and Bryant in 2011.6 This claim, too, is meritless.
The scope of cross-examination is a matter within the discretion of the
trial court and will not be reversed absent an abuse of that discretion.
Commonwealth v. Hitcho, 123 A.3d 731, 769 (Pa. 2015). “When a trial
court determines the scope of cross-examination, it may consider whether the
matter is collateral, the cross-examination would be likely to confuse or
mislead the jury, and the cross-examination would waste time.”
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6 On direct appeal, this Court found Bryant’s claim that the court erred in
limiting cross-examination waived because counsel did not provide an offer of
proof in accordance with Pa.R.E. 103(a). See Commonwealth v. Bryant,
2226 EDA 2015 (Pa. Super. filed Nov. 7, 2016) (unpublished memorandum).
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Commonwealth v. Largaespada, 184 A.3d 1002, 1009 (Pa. Super. 2018),
citing Commonwealth v. Brinton, 418 A.2d 734, 736 (Pa. Super. 1980).
See also Commonwealth v. Tighe, 184 A.3d 560, 571 (Pa. Super. 2018
(scope and limits of cross-examination are within sound discretion of trial
court).
During cross-examination of the victim’s mother, the following exchange
took place:
DEFENSE ATTORNEY: [] Would you agree with me that there was
a time period that my client, Richard Bryant, was friendly with
[the victim’s father]?
MOTHER: They grew up together, basically. Yeah.
DEFENSE ATTORNEY: So [they] were friendly; is that correct?
MOTHER: Correct.
DEFENSE ATTORNEY: And would you agree with me that there
was a period when that friendship ended?
DISTRICT ATTORNEY: Objection.
THE COURT: Sustained.
DEFENSE ATTORNEY: Well, ma’am, do you agree with me that
right now as we sit here today, that Mr. Bryant is not on good or
friendly terms with [the victim’s father]?
DISTRICT ATTORNEY: Objection.
THE COURT: Overruled.
MOTHER: He violated his daughter so, no, there are no good
terms between him and [Bryant].
DEFENSE ATTORNEY: Well, isn’t it true that the relationship
between [Bryant] and [the victim’s] father ended before 2012
when these accusations surfaced?
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MOTHER: I believe it ended in—I think it was 2012. I’m not sure
the exact year.
DEFENSE ATTORNEY: Well, would you agree with me that there
was actually a problem between [Bryant] and [the victim’s] father
before these allegations surfaced?
N.T. Jury Trial, 2/2/15, at 21-23. At that point, the Commonwealth objected
and the court sustained the objection. At sidebar, defense counsel explained
her intention was to reveal that the victim’s mother had a motive to fabricate
the charges against Bryant. The court allowed the cross-examination to
continue, but it took a different turn, this time grounded in a dispute between
Bryant and the victim’s brother. Defense counsel then withdrew that line of
questioning and changed topics before ending her cross-examination of the
victim’s mother. See id. at 23–24. What defense counsel was attempting to
elicit was the fact that Bryant and the victim’s father had been arrested in
2011 regarding marijuana sales, that a dispute arose between them regarding
that criminal incident, and that this supported the argument that the victim’s
mother had a motive to fabricate the charges against Bryant.
We find no abuse of discretion in the court’s limiting cross-examination
on collateral issues. The questioning was confusing for the court, let alone
the jury. See N.T. Jury Trial, 2/2/15, at 172-77 (“THE COURT: Well, it doesn’t
make sense[;] Counsel, we’re not going to throw out a bunch of red herrings
here just to—. . . You’ve got to, at least make sense on both sides.”). See
Hitcho, supra; Tighe, supra. Moreover, the court permitted defense
counsel to explore any potential for motive to fabricate, including allowing
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testimony that the victim’s mother and Bryant’s girlfriend had a tumultuous
relationship (N.T. Jury Trial, 2/2/15, at 15-17; 2/3/15, at 11-12); that Bryant
and the victim’s father were “not on good or friendly terms” (N.T. Jury Trial,
2/2/15, at 22-23); and, according to Bryant, that the friendship between him
and the victim’s father had ended in 2011.). Because this claim is meritless,
trial counsel cannot be deemed ineffective. Tilley, supra.
Next, Bryant claims the PCRA court erred when it did not grant an
evidentiary hearing on his claims of ineffective assistance of counsel. Bryant’s
argument consists of two sentences: essentially, the PCRA court “does not
have to hold an evidentiary hearing in every case. Even so, the PCRA [c]ourt
should[.]” Appellant’s Brief, at 24. This claim is waived. See Pa.R.A.P.
2119(a); Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)
(“[I]t is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with pertinent
discussion, with references to the record and with citations to legal
authorities.”) (citations omitted). As this Court has made clear, we “will not
act as counsel and will not develop arguments on behalf of an appellant.” Id.
(citation omitted). Even if we were to address this claim, we would find it
meritless. Bryant has failed to establish that there are genuine issues of
material fact. A hearing, therefore, would serve no purpose.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011).
Next, Bryant argues the prosecutor engaged in misconduct during direct
examination of the victim’s mother and during closing argument, and
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therefore his conviction and sentence violated his constitutional right to due
process under the Fourteenth Amendment. This claim is waived. An issue
that the petitioner could have raised “before trial, at trial, during unitary
review, on appeal or in a prior state postconviction proceeding[,]” but failed
to raise, is waived under the PCRA. See 42 Pa.C.S.A. § 9544(b).
Finally, Bryant claims that his conviction of rape of a child, 18 Pa.C.S.A.
§ 3121(c), was obtained in violation of the ex post facto clauses of the state
and federal constitutions. This claim, too, is waived. See 42 Pa.C.S.A. §
9544(b).7
Having considered the record in the light most favorable to the
Commonwealth as the prevailing party, we conclude that the evidence of
record supports the conclusions of the PCRA court and that its ruling is free of
legal error. Bryant did not present in his petition, or in his response to the
Commonwealth’s motion to dismiss, any issue of fact, which, if resolved in his
favor, would justify relief. Thus, the PCRA court did not err in denying the
petition without an evidentiary hearing. See Pa.R.Crim.P. 907(1); Simpson,
supra at 260–261.
Order affirmed.
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7 To the extent that Bryant would claim this is a question of legality of
sentence, we point out that section 3121(c) neither criminalized new behavior
nor increased the penalty to which Bryant was subject. Though the statute
was amended in between the time of commission and the time of sentence,
see 18 Pa.C.S.A. § 3121(a)6) (amended February 7, 2003), both versions of
the statute prohibit sexual intercourse with a child under thirteen years of age
and both versions designated that crime as a felony of the first degree.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/20
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