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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUNIOR VILLANUEVA

                            Appellant                   No. 85 EDA 2016


                Appeal from the PCRA Order November 30, 2015
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002698-2009


BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 19, 2016

        Junior Villanueva appeals from the order entered in the Court of

Common Pleas of Northampton County denying his petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       After careful

review, we affirm.

        Following trial in September 2010, a jury convicted Villanueva of rape

of a child,1 statutory sexual assault,2 involuntary deviate sexual intercourse

with a child,3 one count of sexual assault,4 aggravated indecent assault of a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3121(c).
2
    18 Pa.C.S.A. § 3122.2.
3
    18 Pa.C.S.A. § 3124.1.
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child,5 indecent assault of a person less than thirteen years of age,6

endangering the welfare of children,7 and corruption of minors.8               The

convictions stemmed from the sexual abuse of a minor child, who was the

daughter of Villanueva’s live-in companion.

        On January 25, 2011, the court sentenced Villanueva to an aggregate

term of 46 to 92 years of imprisonment.           Villanueva filed a direct appeal,

and this Court affirmed the judgment of sentence. See Commonwealth v.

Villanueva, 53 A.3d 927 (Pa. Super. 2012). Villanueva filed a petition for

allowance of appeal to the Pennsylvania Supreme Court, which was denied.

Commonwealth v. Villanueva, 64 A.3d 632 (Pa. 2013).

        On March 14, 2014, Villanueva filed a timely pro se PCRA petition. The

court appointed counsel, and on January 15, 2015, counsel filed an amended

PCRA petition.     Following a hearing, the PCRA court denied relief.         This

appeal followed.         Villanueva raises five issues, each challenging trial

counsel’s effectiveness:


                       _______________________
(Footnote Continued)
4
    18 Pa.C.S.A. § 3124.1.
5
    18 Pa.C.S.A. § 3125(b).
6
    18 Pa.C.S.A. § 3126(a)(7).
7
    18 Pa.C.S.A. § 4304(a)(1).
8
    18 Pa.C.S.A. § 6301(a)(1).




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      1. Attorney Andres was ineffective for failing to appeal the Lower
      Court’s finding that the alleged child victim was competent to
      testify.

      2. Attorney Andres was ineffective for failing to request that the
      Lower Court order the alleged child victim to undergo a
      psychiatric evaluation to assist in determining her competency to
      testify.

      3. Attorney Andres was ineffective for failing to request the
      appointment of a certified Spanish sign language interpreter for
      Appellant.

      4. Attorney Andres was ineffective for failing to object to certain
      leading and hearsay questions from the Commonwealth at trial.

      5. Attorney Andres was ineffective for failing to properly advise
      Appellant about testifying at trial.

Appellant’s Brief, at 4.

      A petitioner challenging counsel’s effectiveness will be granted relief

under the PCRA if he proves by a preponderance of the evidence that his

conviction or sentence resulted from “the ineffective assistance of counsel,

which, in the circumstance 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); Commonwealth v.

Sportz, 84 A.3d 294, 311 (Pa. 2014).

      Our Supreme Court has further stated that before a PCRA petitioner

will be deemed entitled to relief on an ineffectiveness claim, he or she must

establish:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s action or failure to act; and (3) he
      suffered prejudice as a result of counsel’s error, with prejudice
      measured by whether there is a reasonable probability the result
      of the proceeding would have been different. Commonwealth


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      v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011) (employing
      ineffective assistance of counsel test from Commonwealth v.
      Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987)). Counsel is
      presumed       to    have     rendered    effective    assistance.
      Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010).
      Additionally, counsel cannot be deemed ineffective for failing to
      raise a meritless claim. Commonwealth v. Jones, 590 Pa.
      202, 912 A.2d 268, 278 (2006). Finally, because a PCRA
      petitioner must establish all the Pierce prongs to be entitled to
      relief, we are not required to analyze the elements of an
      ineffectiveness claim in any specific order; thus, if a claim fails
      under any required element, we may dismiss the claim on that
      basis. Ali, at 291.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote

omitted).

      In his first issue, Villanueva argues that his attorney was ineffective for

failing to raise on direct appeal the issue of the child-witness’s competency.

Villanueva claims that the trial court applied an incorrect standard while

evaluating the child’s competency.

      Generally, every witness is presumed competent; however, the court

must examine a child witness for competency. Rosche v. McCoy, 156 A.2d

307, 310 (Pa. 1959); Commonwealth v. Moore, 980 A.2d 647, 649-50

(Pa. Super. 2009). In Rosche, the Pennsylvania Supreme Court held that it

would presume competent a child who is over the age of fourteen. Further,

the Court set forth the following factors to consider when determining

whether a child is competent:

      (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



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      she is called to testify about, and (3) a consciousness of the duty
      to speak the truth.

Rosche, 156 A.2d at 310.        The Court further elaborated that because

children are prone to living in the world of make-believe, a court must

exercise care since “much must be left to the discretion of the trial judge

who hears and sees the witness.” Id.

      Here, during the competency hearing, the child was able to respond to

most of the questions she was asked. The child understood why she was in

court, and answered in the affirmative when asked if she knew what it

meant to tell the truth.   Although the child appeared nervous in detailing

what she was going to talk about in court, she did identify Villanueva as the

subject of her testimony. N.T. Trial, 9/13/10, at 10-12. The court and the

parties extensively interviewed the child about the definition of truth, which

she correctly explained as “do not tell a lie.” Id. at 8. When asked what

happens if you lie, the child stated without hesitation that “[y]ou get in

trouble.” Id. The child was well-aware that the consequence of telling a lie is

a punishment.

      The trial court observed the witness at the hearing and, following the

hearing, heard argument from defense counsel and the Commonwealth. The

court determined that the child communicated effectively, was able to recall

events to which she testified, and understood the need to be truthful. The

court stated that although the child was hesitant, “she was not abjectly

confused, nor was she unable to perceive and frame answers to the

questions put to her.” Trial Court Opinion, 11/30/15, at 8. Further, despite

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the court’s estimation that “the child may not have been an ideal witness[,]”

the court accurately noted that “[c]hildren rarely are.”   Id.   We conclude

the court applied the correct standard, see Rosche, supra, and that its

determination of competency is supported in the record.          This issue is

meritless and, therefore, counsel was not ineffective for failing to raise the

issue on direct appeal. Treiber, supra.

      In his second issue, Villanueva argues that because of the child’s

“manifest incompetence,” Villanueva’s trial counsel was ineffective in failing

to request the court order an independent psychiatric evaluation of the child.

In his brief, Villanueva contends that “a trial court may order a psychiatric

evaluation of the child witness to assist the court in evaluating the child’s

competency to testify where the competency hearing establishes a reason to

doubt the child’s competency.”     Commonwealth v. Shearer, 894 A.2d

793, 794-95 (Pa. Super. 2009). This claim is meritless. As demonstrated

above, the court engaged in a thorough inquiry and analysis of the child’s

competency to testify.    The court made the competency determination

independently, determining that there was no compelling reason or indicia of

incompetency to warrant a psychological evaluation.        Therefore, counsel

was not ineffective for failing to request an independent psychiatric

evaluation. Treiber, supra.

      In his third issue, Villanueva argues that because he had a hearing

deficiency, his counsel was ineffective in failing to request a Spanish sign

language interpreter.

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      Where the court is put on notice that a defendant has difficulty
      understanding or speaking the English language, it must make
      unmistakably clear to him that he has a right to have a
      competent translator assist him, at state expense if need be.
      Where, on the other hand, no request for an interpreter has
      been made and the defendant appears to comprehend the
      nature of the proceedings and the charges against him, the trial
      court does not abuse its discretion by proceeding without
      appointing an interpreter.

Commonwealth v. Wallace, 641 A.2d 321, 324 (Pa. Super. 1994).

Further, “a defendant does not necessarily lose his right to an interpreter by

not asserting it. It depends on the facts in each case as to whether the trial

court was effectively alerted to the need for an interpreter.” Id.

      In Wallace, the court found that neither appellant nor his counsel

called to the court’s attention the fact that appellant was struggling to

understand the proceedings due to his hearing impairment. The record did

not reflect that the court “was aware, or should have been aware . . . that

the appellant was unable to comprehend the nature of the proceedings, to

hear the testimony of witnesses, or to assist in his own defense. Id. at 326.

Consequently, the court in Wallace determined that since the appellant did

not make a request for an interpreter and necessity for an interpreter was

not readily apparent, the court did not abuse its discretion by failing to

assign a sign language interpreter. Id. at 327.

      In this case, Villanueva’s counsel never alerted the trial court that his

client was struggling to understand any of the court’s proceedings because

of his hearing disability.    In addition, the record does not show that

Villanueva’s inability to understand would have been apparent to the court.


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During the proceedings, Villanueva had a Spanish language interpreter who

interpreted all the proceedings for him. In addition, the record reveals that

Villanueva had the ability to read lips and had hearing aids.   According to

trial counsel, the proceedings were familiar to Villanueva, as counsel had

extensively discussed them with his client ahead of time.       Trial counsel

consulted with Villanueva as to how he wanted to handle certain aspects of

his representation.   In light of the record and trial counsel’s testimony,

Villanueva’s claim, which alleged that his counsel was ineffective because

counsel did not request a sign language interpreter, is without merit.

Counsel, therefore, was not ineffective. Treiber, supra.

     Next, Villanueva argues that counsel was ineffective because he failed

to object to certain leading questions and hearsay during the testimony of

M.S., the teenage sister of the minor victim. He claims counsel should have

objected to the following examination of M.S. by Assistant District Attorney

Broscious :

     Q: Did you shower with your sister?

     A: Yes, sometimes, we used to take a shower together.

     Q: I believe you previously said that sometimes he would come
     in?

     A: Yeah. He always – when me and my sister, we used to take a
     bath together, he always came knocking on the door, say, I have
     to use the bathroom, it’s an emergency, I really have to use it.
     So we just open the door.

(N.T. Trial, 9/14/2010, at 91-92 (emphasis added).




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      Villanueva contends the question assumed facts not in evidence.

Generally, leading questions are prohibited on direct examination except as

necessary to develop the witness’s testimony.            See Pa.R.E. 611(c).

Arguably, therefore, this claim has merit.     When questioned at the PCRA

hearing as to why he did not object, trial counsel stated that he knew the

witness would be testifying as to the events in the bathroom, and he knew

that had he objected, the Commonwealth’s attorney, whom trial counsel

characterized as “an experienced attorney,” would elicit that testimony by

simply rephrasing the question.     See N.T. PCRA Hearing, 5/29/15, at 56.

Trial counsel believed an objection would not “have gotten me very far[.]”

Id.   We are satisfied that counsel’s decision not to object was reasonable

under the circumstances. See Commonwealth v. Wells, 521 A.2d 1388,

(Pa. 1987).

      Villanueva also challenges the statement M.S. made when describing

the incident where a naked Villanueva had entered the bedroom she shared

with the victim and that M.S. ordered him to be gone from the room when

she returned from using the bathroom. M.S. testified:

      I still could feel like someone was pulling the blanket. So when I
      turned the light on like really fast, I saw [Villanueva] was like in
      the middle [of me and my sister]. And I saw him like bare
      naked. And then he turned the lights off really fast. . . . So I’m
      like, I told him, so what you doing here, you’re supposed to be
      sleeping in your room. That’s why you have your own bedroom.
      And he was like, oh, you should turn the light off, your sister is
      sleeping. When I look at my sister, my sister had her eyes
      open. So I told him, what you talking about, she is awake. So
      I’m like, well, I’m going to use the bathroom. So when I come


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      back, you should be like in your room. And so when I went to
      the bathroom, my sister came running after me when I was
      using the bathroom.       She told me that I save her from
      [Villanueva]. And I’m like, what are you talking about? She’s
      like, oh, you just save me, that’s all.

N.T. Trial, 9/14/10, at 87.

      Villanueva claims this is inadmissible hearsay and that counsel was

ineffective for failing to object. Counsel explained at the PCRA hearing that

he did not object because, although it may have been hearsay, the witness’s

testimony fell within either the excited utterance or present sense

impression exceptions to the hearsay rule. N.T. PCRA Hearing, 5/29/15, at

59.

      “`Hearsay’ is a statement that (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted.”      Pa.R.E. 801(c).    We agree with

counsel’s reasoning that the statement could fall within either the excited

utterance exception to the hearsay rule, see Pa.R.E. 803(2) (“a statement

relating to a startling event or condition, made while the declarant was

under the stress of excitement that it caused” not hearsay), or the present

sense impression exception to the hearsay rule.        See Pa.R.E. 803(1) (“a

statement described or explaining an event or condition, made while or

immediately after the declarant perceived it” not hearsay).

      Again, we are satisfied that counsel’s decision not to object was

reasonable under the circumstances.       Wells, supra.    Further, we find no

prejudice, as this information had already been presented through the


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victim’s testimony.     This claim of ineffectiveness, therefore, also fails.

Treiber, supra.

      Finally, Villanueva argues that counsel was ineffective due to his

failure to advise Villanueva of the benefits of testifying.

      The decision whether or not to testify on one’s own behalf is made by

the defendant after full consultation with counsel. Commonwealth v.

Breisch, 719 A.2d 352, 355 (Pa. Super. 1998). Where counsel’s decision

not to call the defendant was reasonable, counsel was not ineffective.

Commonwealth v. Whitney, 780 A.2d 471, 476 (Pa. 1998). In order to

sustain a claim that counsel was ineffective for “failing to call the appellant

to the stand,” the appellant must demonstrate either:          (1) that counsel

interfered with his right to testify, or (2) that counsel gave specific advice so

unreasonable as to vitiate a knowing and intelligent decision to testify on his

own behalf. Breisch, supra, at 355.

      The record reveals that counsel’s decision not to call Villanueva was

reasonable. Counsel explained that he advised his client of the advantages

and disadvantages of testifying, he explained to Villanueva what the

anticipated cross-examination would be, as well as his constitutional right to

remain silent, and the court’s jury instruction when a defendant invokes his

right to remain silent. Counsel also stated that he explained that despite the

court’s jury instruction, the jury might make a negative inference from a

defendant’s failure to testify.   Counsel explained that a jury likes to hear

what the defendant has to say.          He also explained that even though

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Villanueva chose not to take the stand, there were categorical denials from

the investigators and child services that would inform the jury of his position

without having to testify.     Counsel pointed out that ultimately it was

Villanueva who made the decision against testifying. N.T. Trial, 5/29/2015,

at 67-71.   There is nothing to suggest that counsel in any way interfered

with Villanueva’s right to testify or that he gave any specific advice that

would be unreasonable. Because Villanueva did not establish either that trial

counsel interfered with his right to testify, or that trial counsel gave him

unreasonable advice as to invite an intelligent decision as to whether to

testify on his own behalf, his final claim of ineffectiveness is meritless.

Treiber, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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