J-A20016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: A.B.                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: A.B., A MINOR                :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 1412 WDA 2016

              Appeal from the Order Entered August 23, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-JV-0001836-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 21, 2018

      A.B. appeals from the disposition order, entered in the Court of Common

Pleas of Allegheny County, following his adjudication of delinquency on

charges of involuntary deviate sexual intercourse with a child, aggravated

indecent assault of a child, and sexual assault. After our review, we affirm.

      A.B. was charged with one count each of involuntary deviate sexual

intercourse with a child, one count of aggravated indecent assault of a child,

and one count of sexual assault (F2). At the hearing, the victim testified that

when he was ten years old, he was playing video games with A.B., who was

his uncle.   They were left alone while his mother and grandmother went

grocery shopping and his other uncle went to walk the dogs.        The victim

testified that he and A.B. were both sitting in chairs playing the video game,

and he noticed that A.B. was playing with “his private part.” N.T. Adjudication

Hearing, 5/19/16, at 103. The victim testified that he got up to get something
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to drink and he felt A.B.’s hands on his hips. He stated that A.B. pulled the

victim’s pants down, forced him to his knees and “penetrated” him in “his

butt.” Id. at 106. The victim testified that it hurt, he told A.B. to stop and

tried to push A.B. off.    After A.B. stopped, he told the victim, “If you tell

someone, I’ll hurt you.” Id. at 106-108.

        Following an adjudicatory hearing before the Honorable Guido A.

DeAngelis, the court entered a dispositional order finding A.B. delinquent as

charged.     A.B.’s trial counsel did not file post-dispositional motions and,

instead, filed a motion to withdraw on September 9, 2016. The trial court

denied the motion and ordered counsel to file a notice of appeal and then seek

substitution. Counsel filed a timely appeal on A.B.’s behalf, as well as a court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Counsel again sought to withdraw, and this Court granted counsel’s

request and remanded for appointment of counsel.

        Upon remand, the public defender entered his appearance in this Court

and, on February 21, 2017, sought remand for the filing of post-dispositional

motions nunc pro tunc, raising trial counsel’s ineffectiveness for failing to

conduct a voir dire of the eleven-year-old victim with respect to his

competency to testify at the adjudicatory hearing. This Court remanded the

matter, and the trial court held an ineffectiveness hearing on October 17,

2017.

        At the conclusion of the ineffectiveness hearing, the court stated that it

would take the matter under advisement and scheduled a subsequent

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proceeding. At that subsequent proceeding, which was held on February 20,

2018, the court pronounced its findings of fact and conclusions of law,

ultimately denying A.B.’s ineffectiveness claim.1 On appeal, A.B. challenges

that ruling and raises the following issue for our review:

       Whether the juvenile court erred in denying A.B.’s request for a
       new adjudicatory hearing based on trial counsel’s ineffectiveness
       when the record makes clear that trial counsel completely refused
       to examine the purported victim, an 11-year-old child who
       suffered from a debilitating psyc[h]opathology that affected his
       reasoning and judgment, and, instead, just stipulated that the
       child was competent, even though Pennsylvania law requires a
       child under 14 years of age to be evaluated for competency [and]
       the test for competency requires some evidence that the child
       possessed a consciousness of the duty to speak the truth, but no
       such evidence was ever brought out during the Commonwealth’s
       examination of the child?

Appellant’s Brief, at 6.

       Counsel is presumed to have provided effective representation unless it

is established that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable basis for his or her conduct; and (3) appellant was

prejudiced by counsel’s action or omission. Commonwealth v. Perry, 959

A.2d 932, 936 (Pa. Super. 2008). In order to prove prejudice here, A.B. must
____________________________________________


1 In our August 2, 2018 judgment order, this Court determined that the notes
of testimony from the February 20, 2018 proceeding, to which both parties
and the trial court referred and which were required for our review, had not
been included in the certified record on appeal. The court had adopted those
findings and conclusion stated in that proceeding as its opinion. We remanded
this case to the court of common pleas with directions the omission be
corrected and a supplemental record, if available, be certified and transmitted
within fourteen (14) days. See Pa.R.A.P. 1926(b)(1). Counsel has complied
with that order. The notes of testimony from the February 20, 2018 are now
part of the certified record on appeal.

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establish that, had counsel not stipulated to competency, the result would

have been different.

      A party who challenges the competency of a minor witness must prove

by clear and convincing evidence that the witness lacks “the minimal capacity

. . . (1) to communicate, (2) to observe an event and accurately recall that

observation, and (3) to understand the necessity to speak the truth.”

Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003), citing Rosche

v. McCoy, 156 A.2d 307 (Pa. 1959).       See Commonwealth v. D.J.A., 800

A.2d 965, 969 (Pa. Super. 2002) (“Competency of a witness is presumed, and

the burden falls on the objecting party to demonstrate incompetency.”).

      First, we point out that A.B.’s characterization of the issue here,

referring to the victim’s “debilitating psychopathology,” is misleading.       A

child’s nightmares, which in this case intensified after the assault, do not

amount to debilitating psychopathology. This argument is a red herring.

      At the adjudicatory hearing, prior to the victim’s direct examination, the

prosecutor asked the victim a series of foundational questions. He responded

correctly to general questions about his age, his birthdate, his school, and his

grades (“As and Bs and one C.”). See N.T. Adjudicatory Hearing, supra at

90-93. The victim also indicated that he understood that it was bad to break

rules at school, that he would be punished if he broke the rules, that one of

the rules in court is that you have to tell the truth, and that he understood the

difference between the truth and a lie.        Id. at 93-94.      Following the




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questioning, defense counsel declined the court’s offer to voir dire with respect

to competency, and stipulated to the witness’s competency. Id. at 94.

      At the ineffectiveness hearing held on October 17, 2017, when

questioned as to why he stipulated to the witness’s competency to testify,

defense counsel explained, at length, the reasoning behind his decision:

      A: I had the ability to watch him. I had the ability to watch direct
      examination. I had the ability to see the forensic
      examination, the video of him. And I found him at that
      point in my professional opinion as a credible and
      competent witness. I understood that he believed the
      difference between a truth and a lie and why he was here
      in court.

      Q. So, you felt that he knew the difference between the truth and
      a lie. What about his understanding of his duty to tell the truth?

      A. I think there was nothing to lead me to believe he did not
      understand that he was here to tell the truth.

      Q. And had you decided to voir dire him, did you have concerns
      that if you voir dired him, that you may actually end up have
      hurting [A.B.’s] case.

      A. I think if I voir dired him, it probably just would have
      been repetitious because I believe he was competent. And
      there was an issue with the nightmares that I believe could
      have hurt [A.B.’s] case in reference to how they seemed to
      intensify after the alleged incident.

      Q. Right. So as a result, you felt it was not prudent to challenge
      or explore [the victim’s] consciousness of the duty to speak the
      truth?

      A. It was my opinion that he appeared to be competent to
      testify as a witness for the Commonwealth.

                        ****

      A. I explained to [A.B.], and he had also seen the forensic video
      of [the victim], that [the victim] was a very credible witness. He
      came off very well. And that this was a classic he said/she said

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     type of case where the Court is going to determine if in fact it
     happened. I think critical in the case was the fact that [the
     victim’s] own mother was going to corroborate our testimony. And
     when that didn’t happen, that hurt the defense during the course
     of the trial. . . . But I don’t believe I would have stipulated unless
     I felt that the Commonwealth had done an adequate job voir diring
     the witness.

     Q. And you testified that you actually received a copy of the
     forensic interview of the victim []?

     A. Yes.

     Q. You reviewed that?

     A. I watched it.

     Q. And then you watched it with the defendant, [A.B.]?

     A Yes.

     Q Who else was present if anyone when you watched that with
     him?

     A. No one. Because a protective order indicated that that only two
     of us would have been able to witness and watch that.

     Q And when you were watching that with him, did he have any
     questions for you?

     A No. He was actually very quiet and watched it.

     Q What did you guys discuss either during or after you watched
     that forensic interview of the victim?

     A. We had discussed the fact that [the victim] was very credible.
     That we may not have agreed with what he said, but he came off
     as a credible witness and there were some concerns about him
     testifying in accordance with what he said in the interview. . . .
     [T]he advantage that I had with [the victim] was seen
     before trial in seeing the forensic interview, knowing what
     he was going to say and the manner he said it. Whether he
     had good eye contact. Whether he looked down. Did not
     look up. So, there was a lot of indications in the ability to
     tell the truth and be able to look straight in somebody's eye
     and say something. . . .



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      Q. So, I guess I should break it up. In the instance where you
      observed him in the forensic interview, was there any doubt in
      your mind just based on that video whether he would be
      competent to testify at trial?

      A. There was no issue. Like I said, he was competent and very
      credible in his witness interview.

      Q. What about when he testified at trial. Based upon the different
      environment and sort of the escalation of the emotions that exist
      during the trial, did you have any hesitation about whether his
      testimony at trial raised an issue as to his competence?

      A. Very competent. Credible witness. Good eye contact with
      the Judge. He was very calm and essentially recounted
      what he said in the interview.

      Q. If you would have had any indication or concern would you
      have immediately raised it?

      A. If I didn't think he was competent, I certainly would have done
      extended voir dire on him.

      Q. Is that something you have done in the past in your 20 or 30
      cases with child victim witnesses?

      A. Yes.

N.T. Ineffectiveness Hearing, 10/17/17, at 17-45 (emphasis added).

      Our review of the record reveals that the prosecutor established that

the victim possessed the ability to communicate and supply clear answers,

observe and recall events, and understood the difference between the truth

and a lie. Delbridge, supra; D.J.A., supra.       At trial, the victim testified

that he understood the duty to speak the truth and he demonstrated the ability

to communicate and observe and remember the details of the sexual assault

by his uncle, A.B., also a minor. As such, there was no need to conduct a

further colloquy. See In Interest of J.R., 648 A.2d 28, 31 (Pa. Super. 1994)



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(four-year-old victim of alleged sexual assault was competent to testify in

juvenile delinquency proceeding against her 13–year-old cousin); see also

Commonwealth v. Gaerttner, 484 A.2d 92 (Pa. Super. 1984) (ten–year–

old victim of sexual assault, who was eleven years old at time of testifying,

was competent witness; defense counsel could not be found ineffective for

failing to raise issue of competency). A.B. has not pointed to a single instance

in the victim’s testimony which would create a serious doubt about the victim’s

ability to explain the details of the assault in a competent manner.

      Further, where, as here, the fact finder is a judge, and the court

determined the child victim was competent to testify, A.B. has failed to show

prejudice. Perry, supra. The trial court set forth the following findings and

conclusions at the February 20, 2018 proceeding:

      [Defense counsel] testified credibly that he had handled over 100
      cases of sexual assault. During his over 20 years of practice, he
      had observed victims of tender years testify on many occasion.
      Prior to the [adjudication], counsel observed the Victim’s behavior
      by way of observation of the forensic interview, which he viewed
      with A.B., his client. Counsel opined that the forensic interview
      showed the Victim to be credible, a fact he relayed to A.B. At the
      time of the alleged incident, the Victim was not known by trial
      counsel to have any mental health issues. Though the Victim
      began experiencing nightmares, counsel made a reasonable
      strategic decision not to pursue that avenue of questioning in that
      the nightmares may have been a result of the sexual assault by
      A.B. At the time of the hearing, counsel testified that in his
      professional opinion the Victim was competent based upon his
      observations. Counsel testified that the Victim maintained good
      eye contact, was calm, and consistent in his testimony. This
      Court, as well as defense counsel, observed the Victim during the
      hearing and is of the opinion that the Victim was competent to
      testify. . . Prior to the testimony of the Victim, the Commonwealth
      conducted voir dire of the Victim and that testimony, coupled with

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      the observations of the forensic interview, led counsel to his
      conclusion of competency. The Victim was competent to testify,
      and counsel had a reasonable strategy to stipulate to competency.

Findings of Fact, 2/20/18, at 5-7. The court’s findings are fully supported in

the record. We agree with the trial court’s determination that the child witness

was competent to testify and no purpose would have been served by an

additional formal colloquy. See Commonwealth v. Smith, 167 A.3d 782

(Pa. Super. 2017) (petitioner failed to demonstrate prejudice resulting from

trial counsel’s failure to object to competency of 11-year old victim to testify

at trial for rape of child and other sex offenses).

      In conclusion, the record confirms that eleven-year-old victim fulfilled

the three requirements of competency, Delbridge, supra, and A.B. has failed

to establish prejudice as a result of defense counsel’s stipulation. We conclude,

therefore, that A.B.’s claim of counsel’s ineffectiveness for failing to challenge

the victim’s competency fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2018




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