J-S36023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ROBERT TUCKER,

                        Appellant                      No. 82 EDA 2016


            Appeal from the PCRA Order of December 18, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010230-2010


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY OLSON, J.:                               FILED JUNE 23, 2017

     Appellant, Robert Tucker, appeals pro se from the order entered on

December 18, 2015, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court ably summarized the underlying facts and procedural

posture of this appeal. As the PCRA court explained:

        [The victim in this case, T.C., was born in June 1992]. In
        1997, at the age of five, the victim[] resided with her
        mother and [Appellant], her mother’s paramour, in the
        basement of a house on 15th Street in Philadelphia. In this
        basement arrangement, a wall separated the victim’s bed
        from the bed shared by her mother and [Appellant]. The
        victim’s mother was often drunk and was hospitalized for a
        period of two weeks during this time. [Appellant] was
        responsible for watching the victim during her mother’s
        hospitalization.

        While the victim’s mother was hospitalized, [Appellant]
        sexually assaulted [the] victim. Initially, [Appellant]
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       touched the victim by placing his hand on the skin outside
       of her vagina.     Thereafter, but while her mother still
       remained in the hospital, [Appellant] repeatedly raped the
       victim, penetrating her vagina with his penis multiple times.
       [Appellant] also penetrated her vagina digitally multiple
       times.    This molestation did not abate even after the
       victim’s mother returned home from the hospital. Amidst
       an assault while the victim’s mother was home, [Appellant]
       covered the victim’s mouth with his hand when she was
       about to cry out and physically restrained her with his
       hands and body. He demanded that the victim be quiet and
       insisted that no one would believe her and no one loved
       her. Bravely, the victim notified her mother of [Appellant’s]
       behavior, but her mother instructed her not to mention this
       again.

       The abuse stopped after the victim, at age six, moved in
       with her aunt.    Eventually, the victim was placed at
       Devereaux, a facility for teens who need extra help or
       supervision. At Devereaux, the victim met with a therapist,
       “Mr. Bob,” to whom she reported [Appellant’s] abuse in
       January 2010. In the presence of the victim, Mr. Bob
       immediately reported the incident to the police. . . .

       The victim met with Vivian Boyle, a Philadelphia Department
       of Human Services representative, on January 26, 2010.
       The victim and Ms. Boyle also met on February 5, 2010 and
       March 4, 2010. The victim reported that the abuse occurred
       sometime when she was between the age of four and six.
       The victim was also interviewed by Officer Green of the
       Special Victims, Child Abuse Unit on February 15, 2010, and
       was examined at St. Christopher’s Hospital during the
       investigation.

                                   ...

       [On September 2, 2010, the Commonwealth filed its
       information against Appellant. The information charged
       Appellant with a number of crimes against the victim,
       including rape, endangering the welfare of children, and
       aggravated indecent assault.        See Commonwealth’s
       Information, 9/2/10, at 1-4]. On June 28, 2011, following a
       jury trial . . . , [Appellant] was found guilty of rape,
       endangering the welfare of children, [and] aggravated

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            indecent assault.[1] On October 28, 2011, [the trial court]
            imposed terms of imprisonment of ten [] to [20 years’] for
            the charge of rape, [12 to 24 months’] for the charge of
            endangering the welfare of a child, and [two-and-a-half to
            five years’] for aggravated indecent assault, all to be served
            consecutively.

            . . . On April 30, 2013, the Superior Court affirmed
            [Appellant’s judgment of sentence and, on October 16,
            2013, the Pennsylvania Supreme Court denied Appellant’s
            petition for allowance of appeal.  Commonwealth v.
            Tucker, 75 A.3d 566 (Pa. Super. 2013) (unpublished
            memorandum) at 1-8, appeal denied, 77 A.3d 1260 (Pa.
            2013)].

PCRA Court Opinion, 6/23/16, at 1-4 (internal footnotes and citations and

some internal capitalization omitted).

        On October 31, 2013, Appellant filed a pro se, timely, first PCRA

petition.     Within the petition, Appellant claimed that his trial counsel was

ineffective for failing to call the victim’s mother as a witness. Attachment to

Appellant’s PCRA Petition, 10/31/13, at 1-4. Appellant also claimed that the

trial court erred when it permitted the Commonwealth to amend the

information and change the date upon which the alleged offenses occurred

and when it permitted the Commonwealth to introduce evidence of

Appellant’s prior conviction for sexual assault against his daughter.        Id. at

17-19 and 25-26.

        The PCRA court appointed counsel to represent Appellant during the

proceedings.      However, on September 28, 2015, appointed counsel filed a

____________________________________________


1
    18 Pa.C.S.A. §§ 3121(a)(1), 4304, and 3125(a)(7), respectively.



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no-merit letter and a request to withdraw as counsel, pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).               After reviewing

counsel’s no-merit letter, the PCRA court issued Appellant notice, pursuant

to Pennsylvania Rule of Criminal Procedure 907, of its intent to dismiss

Appellant’s petition in 20 days, without holding a hearing.            PCRA Court

Order, 11/9/15, at 1.

       On November 17, 2015, Appellant filed a pro se response to counsel’s

Turner/Finley letter and, within this response, Appellant claimed that prior

counsel was ineffective for failing to claim that the statute of limitations

barred Appellant’s prosecution and for failing to call “Dr. Bob” as a witness

at trial. Appellant’s Response, 11/17/15, at 1-8.

       On December 18, 2015, the PCRA court dismissed Appellant’s PCRA

petition.   Based upon representations made by Appellant and Appellant’s

PCRA counsel, it appears as if the PCRA court also granted counsel’s petition

to withdraw on December 18, 2015.2               Appellant filed a timely notice of

appeal and now raises the following claims on appeal:

____________________________________________


2
 The PCRA court order of December 18, 2015 is not in the certified record;
however, we have no reason to believe that the representations made by
Appellant and his PCRA counsel are inaccurate. Moreover, following a
hearing held on February 3, 2017, pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998), the PCRA court determined that Appellant was
permitted to act pro se on appeal. See PCRA Court Letter, 2/3/17, at 1.
Therefore, it is clear that Appellant is properly acting pro se in this appeal.



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          1) Did the defense counsel violate [Appellant’s] 6th[] and
          14th Amendment rights? (Stickland, & Pierce Standard), &
          (Equal Protection of the Law)? When defense counsel failed
          to argue about expired statute of limitations (tolling
          statute), a failure of due process?

          2) Did [Appellant’s] counsel violate [Appellant’s] 6th
          Amendment rights, for failing in issuing “duces tecum”[] to
          Mr. Bob, who was the victim’s therapist? He was the first
          person that the victim had disclosed the allegations during
          session (sexual assaults) (delayed reporting [12 yrs-and 3
          months later]).      It was Mr. Bob who had notified the
          authorities in front of the victim?

          3) Why did the prosecuting attorney, petitioned the [courts]
          to amend the bill of information, when the records clearly
          indicated (by the complainant), when the alleged offense
          had allegedly took place?

Appellant’s Brief at 6-8 (some internal capitalization omitted).3

        As we have stated:

          [t]his Court’s standard of review regarding an order
          dismissing a petition under the PCRA is whether the
          determination of the PCRA court is supported by evidence of
          record and is free of legal error. In evaluating a PCRA
          court’s decision, our 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. We may affirm a PCRA court’s decision on
          any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).




____________________________________________


3
    For ease of discussion, we have re-ordered Appellant’s claims on appeal.




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J-S36023-17



      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness 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.A. § 9543(a)(2)(ii).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”       Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).          To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence that:

         (1) his underlying claim is of arguable merit; (2) the
         particular course of conduct pursued by counsel did not
         have some reasonable basis designed to effectuate his
         interests; and, (3) but for counsel’s ineffectiveness, there is
         a reasonable probability that the outcome of the challenged
         proceedings would have been different.


Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).              “A failure to

satisfy any prong of the test for ineffectiveness will require rejection of the

claim.” Id.

      First, Appellant claims that his trial counsel was ineffective for failing

to claim that the statute of limitations had expired on his charges and that

the Commonwealth was thus barred from prosecuting him for his crimes.

This claim fails.

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      The   Commonwealth       claimed        that   Appellant    committed   rape,

endangering the welfare of children, and aggravated indecent assault

against the victim from January 1, 1996 until June 23, 1998 – when the

victim was between the ages of three-and-a-half to six years old. See N.T.

Trial, 6/29/11, at 4-8 and N.T. Trial, 6/30/11, at 64.            At this time, the

relevant statute of limitations read:

        (a) General rule.--Except as otherwise provided in this
        subchapter, a prosecution for an offense must be
        commenced within two years after it is committed.

        (b) Major offenses.--A prosecution for any of the
        following offenses must be commenced within five years
        after it is committed:

            (1) Under the following provisions of Title 18 (relating to
            crimes and offenses):

                                        ...

                Section 3121 (relating to rape).

                                        ...

                Section 3125     (relating      to   aggravated    indecent
                assault).

                                        ...

        (c) Exceptions.--If the period prescribed in subsection (a)
        or subsection (b) has expired, a prosecution may
        nevertheless be commenced for:

                                        ...

            (3) Any sexual offense committed against a minor who
            is less than 18 years of age any time up to the period of
            limitation provided by law after the minor has reached


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           18 years of age. As used in this paragraph, the term
           “sexual offense” means a crime under the following
           provisions of Title 18 (relating to crimes and offenses):

               Section 3121 (relating to rape).

                                    ...

               Section 3125    (relating   to   aggravated   indecent
               assault).

                                    ...

               Section 4304 (relating to endangering welfare of
               children).

                                    ...

        (d) Commission of offense.--An offense is committed
        either when every element occurs, or, if a legislative
        purpose to prohibit a continuing course of conduct plainly
        appears, at the time when the course of conduct or the
        complicity of the defendant therein is terminated. Time
        starts to run on the day after the offense is committed.

        (e)    Commencement         of   prosecution.--Except   as
        otherwise provided by general rule adopted pursuant to
        section 5503 (relating to commencement of matters), a
        prosecution is commenced either when an indictment is
        found or an information under section 8931(b) (relating to
        indictment and information) is issued, or when a warrant,
        summons or citation is issued, if such warrant, summons or
        citation is executed without unreasonable delay.

42 Pa.C.S.A. § 5552 (quoted provisions in effect from February 17, 1991

until December 19, 2000).

     The victim was born in June 1992. Therefore, the Commonwealth had

until June 2012 to charge Appellant with endangering the welfare of children

and until June 2015 to charge Appellant with rape and aggravated indecent



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J-S36023-17



assault. See 42 Pa.C.S.A. § 5552(a), (b)(1), and (c). The Commonwealth

filed its information against Appellant on September 2, 2010 and, within the

information, the Commonwealth charged Appellant with all three crimes.

See Commonwealth’s Information, 9/2/10, at 1-4. As such, the statute of

limitations did not bar the Commonwealth’s prosecution against Appellant for

rape, aggravated indecent assault, and endangering the welfare of children.

Appellant’s    underlying   claim   thus   has   no   arguable   merit   and   the

ineffectiveness of counsel claim fails.    See Fulton, 830 A.2d at 572.

      Second, Appellant claims that his trial counsel was ineffective for

failing to call the victim’s therapist, “Dr. Bob,” as a witness at trial.

Appellant’s Brief at 8. The PCRA court thoroughly explained why Appellant’s

underlying claim lacks merit:

        According to [Appellant], [Dr. Bob] would have undermined
        the victim’s testimony, particularly by testifying about the
        victim’s other sexual encounters since her abuse that would
        have supported [Appellant’s] claim that the victim was
        lying.

        Pennsylvania’s Rape Shield law precludes testimony
        regarding an alleged victim’s past sexual conduct. [18
        Pa.C.S.A. § 3104]. The relevant portion of the statute
        states[:]

              Evidence of specific instances of the alleged victim’s past
              sexual conduct, opinion evidence of the alleged victim’s
              past sexual conduct, and reputation evidence of the
              alleged victim’s past sexual conduct shall not be
              admissible in prosecutions under this chapter except
              evidence of the alleged victim’s past sexual conduct with
              the defendant where the consent of the alleged victim is
              at issue and such evidence is otherwise admissible
              pursuant to the rules of evidence.

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         Id.

         In the instant case, any testimony [Dr. Bob] could have
         offered regarding the victim’s sexual history would have
         been precluded by the Rape Shield law. The exception of
         the Rape Shield law, which applies in cases where consent
         of the alleged victim is at issue, does not apply here where
         the victim was between [three-and-a-half] and six years old
         and could not consent.

         With the evidence of the victim’s sexual history
         inadmissible, trial counsel could not have been ineffective
         for failing to call [Dr. Bob]. [Dr. Bob] would have merely
         corroborated the victim’s testimony. [Dr. Bob’s] knowledge
         of the offenses came solely from the victim’s reporting the
         abuse. [Appellant] was not prejudiced by his trial counsel’s
         decision to not put [Dr. Bob] on the stand because his
         testimony simply would not have been helpful to
         [Appellant’s] case. Thus, [Appellant’s] argument to the
         contrary is without merit.

PCRA Court Opinion, 6/23/16, at 6-7 (internal citations and footnote

omitted).

       Finally, Appellant claims that the trial court erred when it permitted

the Commonwealth to amend the information on the date of trial. This claim

is waived under the PCRA, as Appellant “could have raised [the claim] but

failed to do so” in his direct appeal from his judgment of sentence.      42

Pa.C.S.A. §§ 9543(a)(3) and 9544(b). Therefore, Appellant is not entitled to

relief on this claim.4

____________________________________________


4
  We note that any claim contained in the argument section of Appellant’s
brief, but which is not contained in the statement of questions involved
section, is waived. Pa.R.A.P. 2116(a) (“[t]he statement of the questions
involved must state concisely the issues to be resolved, expressed in the
(Footnote Continued Next Page)


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J-S36023-17



      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2017




                       _______________________
(Footnote Continued)

terms and circumstances of the case but without unnecessary detail. The
statement will be deemed to include every subsidiary question fairly
comprised therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”).



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