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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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