J-S06026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                     v.

TRI THANH NGUYEN

                           Appellant                   No. 811 MDA 2015


                Appeal from the PCRA Order April 29, 2015
             In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-CR-0002261-2008


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                              FILED MARCH 18, 2016

      Appellant, Tri Thanh Nguyen, appeals from the April 29, 2015 order,

denying his first petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      A prior panel of this Court summarized the relevant procedural history

of this case as follows.

                  On April 15, 2010, [following a bench trial,
            Appellant was found] guilty of various charges
            stemming from the sexual assault of minors.
            Following trial, [trial counsel] was permitted to
            withdraw as counsel, and [current counsel] was
            appointed in his place.       On March 1, 2011,
            [Appellant] was found to be a Sexually Violent
            Predator and was also sentenced [to an aggregate
            term of 406 to 888 months of imprisonment]. On
            March 14, 2011, [Appellant] filed a post-sentence
            motion alleging the ineffective assistance of trial
            counsel.    Due to a lengthy investigation by
            [Appellant], the matter did not proceed to an

*Former Justice specially assigned to the Superior Court.
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           evidentiary hearing until June 30, 2011. On July 18,
           201[1], the Clerk of Courts entered an order
           deeming the post-sentence motion denied by
           operation of law due to the passage of 120 [days]
           since the filing of the post-sentence motion pursuant
           to Pa.R.Crim.P. 720.

                 Following the denial of the post[-]sentence
           motion, [Appellant] made the decision to [forgo] an
           appeal and, instead, filed a [timely PCRA petition] on
           February 29, 2012. An evidentiary hearing was held
           on May 7, 2012. At the hearing, the Commonwealth
           challenged the Court’s jurisdiction to hear the matter
           due to the fact that ineffective assistance of counsel
           had been raised in the post[-]sentence motion, the
           denial of which was not appealed, and therefore had
           been waived. The [PCRA] court ordered briefs on
           the issue. An Order dismissing the [PCRA petition]
           was entered on December 18, 2012, along with an
           accompanying Opinion explaining the [PCRA court’s]
           decision.

Commonwealth v. Nguyen, 87 A.3d 372 (Pa. Super. 2013) (unpublished

memorandum at 1-2), appeal denied, 89 A.3d 661 (Pa. 2014), quoting PCRA

Court Opinion, 3/11/13, at 1. On September 4, 2013, this Court reversed

the PCRA court’s order and remanded for further proceedings, concluding

that Appellant did not waive his ineffective assistance of counsel claims. Id.

at 5-6.   Our Supreme Court denied the Commonwealth’s petition for

allowance of appeal on April 4, 2014. See id.

     On remand, Appellant filed an amended PCRA petition on October 28,

2014. The Commonwealth filed its answer on November 5, 2014. On April




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29, 2015, the PCRA court entered an order denying Appellant’s PCRA

petition. On May 11, 2015, Appellant filed a timely notice of appeal. 1

       On appeal, Appellant raises the following issue for our review.

               1.    Did the [PCRA] court err in denying Appellant’s
                     request for relief under the [PCRA]?

Appellant’s Brief at 4.

       We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA    relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”             Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).               “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”                Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).




____________________________________________
1
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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       The Sixth Amendment to the Federal Constitution provides, in relevant

part, “[i]n all criminal prosecutions, the accused shall enjoy the right … to

have the Assistance of Counsel for his defence.”2      U.S. Const. amend. VI.

The Supreme Court has long held that the Counsel Clause includes the right

to the effective assistance of counsel.          See generally Strickland v.

Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527

A.2d 973, 975 (Pa. 1987).

       In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.”      Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence

fails to satisfy any one of these prongs.”       Commonwealth v. Elliott, 80


____________________________________________
2
  Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.



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A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.

Pennsylvania, 135 S. Ct. 50 (2014).

      Although presented as one issue, Appellant raises two ineffective

assistance of counsel claims in this appeal. In his first claim, Appellant avers

trial counsel was ineffective for not calling D.N., a man who lived in

Appellant’s home and admitted to molesting two of the victims in this case.

Appellant’s Brief at 17.    This Court has previously noted that a PCRA

petitioner has a heavy burden when alleging that counsel failed to call a

certain witness at trial.

            [I]n the particular context of the alleged failure to
            call witnesses, counsel will not be deemed ineffective
            unless the PCRA petitioner demonstrates: (1) the
            witness existed; (2) the witness was available; (3)
            counsel knew of, or should have known of the
            existence of the witness; (4) the witness was willing
            to testify for the defense; and (5) the absence of the
            testimony was so prejudicial to petitioner to have
            denied him or her a fair trial.

Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2012) (citation

omitted).

                   [After] … establish[ing] deficient performance,
            [a defendant] must also show that there is a
            reasonable probability that, but for counsel’s
            unprofessional errors, the result of the proceeding
            would have been different. A reasonable probability
            is a probability sufficient to undermine confidence in
            the outcome.       When a defendant challenges a
            conviction, the question is whether there is a
            reasonable probability that, absent the errors, the
            factfinder would have had a reasonable doubt
            respecting guilt.


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Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (per curiam).            “[T]he

test for prejudice in the ineffectiveness context is more exacting than the

test for harmless error, and the burden of proof is on the defendant, not the

Commonwealth.” Spotz, supra at 315. “[T]he Pierce prejudice standard

[] requires the defendant to show that counsel’s conduct had an actual

adverse effect on the outcome of the proceedings.” Id. “[N]ot every error

by counsel can or will result in a constitutional violation of a defendant’s

Sixth Amendment right to counsel.” Id.

      After careful review, we conclude Appellant has failed to satisfy the

last two prongs articulated in Miner. Appellant has not made any showing

that D.N. was available and willing to testify for the defense.       Appellant

instead posits that trial counsel should have subpoenaed D.N. and let him

invoke the Self-Incrimination Clause of the Fifth Amendment on the stand,

or negotiate immunity for D.N. with the Commonwealth. Appellant’s Brief at

24. This concedes that D.N. was unavailable to testify for the defense if trial

counsel   was   required   to   subpoena   him   for   trial.   See   generally

Commonwealth v. Mollett, 5 A.3d 291, 308 (Pa. Super. 2010) (stating,

“[a] witness who asserts his Fifth Amendment right is unavailable if the trial

court finds that the witness’s concern with incriminating himself is valid[]”),

appeal denied, 14 A.3d 826 (Pa. 2011).

      Furthermore, Appellant does not explain how D.N. invoking the Fifth

Amendment on the stand would give rise to “a reasonable probability that …


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the factfinder would have had a reasonable doubt respecting guilt.” Hinton,

supra. D.N.’s hypothetical invocation of the Self-Incrimination Clause would

not have produced any new facts for the jury to consider in conducting its

deliberations in this case.       Based on these considerations, we conclude

Appellant’s first claim on appeal lacks arguable merit, and Appellant has

failed to show prejudice. See Miner, supra.

         In his second claim, Appellant avers that trial counsel was ineffective

for not filing a taint or competency motion under Pennsylvania Rule of

Evidence 601 for witnesses L.U., who was 15 years old at the time of trial,

and for R.M., who was 9 years old at the time of trial. Appellant’s Brief at

31-34. The Commonwealth counters that both claims lack arguable merit as

Appellant has not shown that either child was incompetent or that her

testimony was tainted. Commonwealth’s Brief at 10-19. We address each

witness in turn.

         As noted above, L.U. was 15 years old at the time of trial. Therefore,

as   a     matter   of   law,   L.U.’s   competency   was   established.    See

Commonwealth v. Moore, 980 A.2d 647, 652 (Pa. Super. 2009) (stating,

“when a witness is under the age of fourteen, the trial court must hold a

competency hearing[]”), appeal denied, 991 A.2d 311 (Pa. 2010). For the

same reason, the trial court was not required to hold a taint hearing. See

Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011) (stating that

because witnesses were “fourteen and fifteen at the time of the taint hearing


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… the issue of taint was totally irrelevant as a matter of law[]”); accord

Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal

denied, 912 A.2d 1291 (Pa. 2006).

      However, R.M. was 9 years old at the time of trial. Therefore, R.M.’s

competency “must be independently established.”         Commonwealth v.

Harvey, 812 A.2d 1190, 1199 (Pa. 2002), abrogated on other grounds,

Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013).

           In order to be found competent, the minor must
           possess: (1) the capacity to communicate, including
           both an ability to understand questions and to frame
           and express intelligent answers; (2) the mental
           capacity to observe the occurrence itself and the
           capacity to remember the matter about which she
           has been called to testify; and (3) a consciousness of
           the duty to speak the truth.

Id.

      In Harvey, the defendant was convicted of first-degree murder, and

he challenged the determination that a 13 year old witness was competent

to testify at trial. Id. at 1193, 1199. Although our Supreme Court held that

the trial court erred in not conducting a separate colloquy on competency, it

concluded the error was harmless.

                 In the instant case, the record clearly indicates
           that [the victim] was able to understand the
           questions asked of her by counsel and was able to
           frame and express intelligent answers to those
           questions regarding the details of the shooting.
           However, as the trial court acknowledged, given that
           [the victim] was only thirteen years old at the time
           of trial, the court did err in failing to conduct a
           separate colloquy in order to determine [the victim’s]

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             understanding of the oath that she took to tell the
             truth. Nevertheless, we agree with the trial court
             that because it had the opportunity to observe [the
             victim’s] demeanor and was the sole determiner of
             her truthfulness, the fact that the trial court did not
             engage in a distinct colloquy regarding the
             truthfulness aspects of her competency did not
             prejudice Appellant.

Id. at 1199.

      In this case, the PCRA court concluded that Appellant had not shown

prejudice within the meaning of Strickland and Pierce based on the

following.

             I don't think there’s any - clearly no prejudice here
             because the fact finder in this case was Judge
             Herman who obviously knew what the standard for
             competency is. He was able to view the witness
             well, observed how she responded to the questions,
             and my review of the hard transcript I see nothing to
             say that she couldn’t observe what she said she saw,
             that she had any trouble articulating what she said
             she saw or that she had [any trouble with] an
             appreciation for the truth telling process, so I just
             don’t think especially in a case with a bench trial that
             I see any prejudice because I see nothing from the
             record to say that she was not competent to testify,
             so I will - I don’t find that he was ineffective for not
             asking for a competency hearing because I don't find
             that [Appellant] was prejudiced in any way.

N.T., 4/22/15, at 24.

      After careful review of the certified record, we conclude Appellant is

not entitled to relief.   Our Supreme Court has explained a defendant’s

burden to show prejudice in the following terms.

                   Relating to the prejudice prong of the
             ineffectiveness test, the PCRA petitioner must

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              demonstrate that there is a reasonable probability
              that, but for counsel’s error or omission, the result of
              the proceeding would have been different.
              Particularly relevant herein, it is well-settled that a
              court is not required to analyze the elements of an
              ineffectiveness claim in any particular order of
              priority; instead, if a claim fails under any necessary
              element of the Strickland test, the court may
              proceed to that element first.

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). As the PCRA

court noted, this was a bench trial, and the trial court was well aware of the

law on competency and “the trial court … had the opportunity to observe

[R.M.]’s demeanor and was the sole determiner of her truthfulness[.]”

Harvey, supra. In this instance, we find our Supreme Court’s decision in

Harvey controlling and conclude Appellant is not entitled to relief on this

issue.

         As for the issue of taint, Appellant argues on appeal that two items in

the record point to evidence of taint. First, Appellant reports that R.M. was

subjected to four interviews by Children and Youth Services (CYS) on

January 5, 2007, January 8, 2007, February 19, 2007, and February 15,

2008, at the conclusion of which no evidence of sexual abuse was

discovered. Appellant’s Brief at 36-37. According to Appellant, “[i]t wasn’t

until October of 2008 that reports of sexual abuse pertaining to [Appellant]

began to arise.” Id. at 37. Appellant also alleges that R.M.’s foster parents

“undoubtedly conducted countless interrogations of the children previously

living in [Appellant]’s home.” Id. at 37. Appellant continues that “the foster


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parents had an incentive to interrogate and encourage the victims to explain

that Appellant was molesting them because if the victims told authorities

that Appellant was molesting them, their meal ticket was punched in that

they would be guaranteed the financial assistance they received to support

the children.” Id. at 38.

      We note that a motion for a taint hearing is governed by the following

legal parameters.

            In order for the court to investigate the issue of taint
            at a competency hearing, however, the moving party
            must come forward with evidence of taint. Once the
            moving party comes forward with some evidence of
            taint, the court must expand the scope of the
            competency hearing to investigate that specific
            question. The party alleging taint bears the burden
            of production of some evidence of taint as well as the
            ultimate burden of persuasion to show taint by clear
            and convincing evidence after any hearing on the
            matter. When determining whether a defendant has
            presented some evidence of taint, the court must
            consider    the    totality    of    the   circumstances
            surrounding the child’s allegations. Some of the
            factors that are relevant in this analysis are: (1) the
            age of the child; (2) the existence of a motive hostile
            to the defendant on the part of the child’s primary
            custodian; (3) the possibility that the child’s primary
            custodian is unusually likely to read abuse into
            normal interaction; (4) whether the child was
            subjected to repeated interviews by various adults in
            positions of authority; (5) whether an interested
            adult was present during the course of any
            interviews; and (6) the existence of independent
            evidence    regarding      the    interview    techniques
            employed.




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Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (internal

quotation marks and citations omitted), appeal denied, 912 A.2d 1291 (Pa.

2007).

      The PCRA court rejected Appellant’s taint issue because it had

reviewed the interviews, and it “just [did not] see anything unduly

suggestive during the interviews in any way.         They [were] very open

end[ed] questions … [and no] suggestion of answers.” N.T., 4/16/15, at 24-

25.   The PCRA court continued that “[t]here’s nothing in the Children’s

Resource Center to indicate that they were being suggested the answers.”

Id. at 25.

      After careful review of the certified record, we conclude Appellant is

not entitled to relief on this issue.   As noted above, in order for a taint

hearing to be warranted, the burden would have been on Appellant to come

forward with evidence of taint.     Judd, supra.     There appears to be no

dispute in this case that there were multiple interviews conducted of the

children. However, multiple interviews are only one factor for a trial court to

consider.    See id.   Our cases unequivocally require us to review a taint

motion utilizing a totality of the circumstances test. See id.

      As to the foster mothers’ alleged financial motive, Appellant’s brief

only refers to testimony by Kristin Nicklas, Esquire (Attorney Nicklas), an

attorney who reviewed certain CYS records for Appellant, that the foster

mothers would call in and ask for more children to be placed with them and


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requested   the    financial   assistance   that   came   with   such   placement.

Appellant’s Brief at 37-38. Attorney Nicklas testified that the foster mothers

asked for the placement of more children and the subsidies for the foster

children.   N.T., 5/7/12, at 26.     According to Attorney Nicklas, the foster

mothers’ requests were refused. Id.

      Appellant’s argument is that the foster mothers had a financial

incentive “to interrogate and encourage the victims to explain that Appellant

was molesting them” and this is evidence of taint. Appellant’s Brief at 38.

However, Attorney Nicklas’s testimony merely established that the foster

mothers asked for additional foster children and the subsidies that would

come with said additional children. Without asserting any evidentiary nexus

between the foster mothers’ requests and their alleged financial motive,

Appellant attempts to impute monetary gain as the specific reason for their

requests to the agency. In our view, Attorney Nicklas’s testimony does not

establish that the foster mothers’ ever conducted any interrogations of any

of the children.    Accordingly, based on the totality of the circumstances

presented in this case, we conclude Appellant would not have met his

burden to warrant a taint hearing.       It is axiomatic that counsel cannot be

ineffective for failing to raise a meritless issue.       Fears, supra at 804.

Therefore, we conclude that Appellant has failed to carry his burden to show

that this claim has arguable merit.




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     Based on the foregoing, we conclude all of Appellant’s issues on appeal

are devoid of merit. Accordingly, the PCRA court’s April 29, 2015 order is

affirmed.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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