J-S30038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

EPHRAIM SANTANE

                             Appellant                   No. 1320 EDA 2014


                   Appeal from the PCRA Order March 27, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000479-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                FILED JULY 08, 2015

       Appellant Ephraim Santane appeals from the March 27, 2014 order

from the Philadelphia County Court of Common Pleas dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541

et seq. We affirm.

       On September 26, 2008, Appellant was arrested and charged with

numerous sexual offenses relating to the sexual abuse of his cousin’s

daughter. The abuse stopped in 1999, when the victim was almost six years

old, after the victim’s sister observed Appellant engaged in a sexual act with

the victim and informed their mother.        Commonwealth v. Santane, No.

2630    EDA    2010,    at    1-2   (Pa.Super.   Aug.   24,   2011)   (unpublished

memorandum). The victim’s mother banished Appellant from the house and

Appellant did not see the victim again. Id. at 2. While hospitalized in 2008
J-S30038-15



at a facility specializing in psychiatric and psychological treatment, the victim

informed hospital staff of the abuse, and hospital staff reported the abuse to

the Philadelphia Police Department. Id.

       A March 2010 jury trial resulted in a mistrial because the jury could

not reach a verdict.       On April 15, 2010, following a second jury trial, the

jury convicted Appellant of rape by forcible compulsion, involuntary deviate

sexual intercourse (“IDSI”) by forcible compulsion, sexual assault, indecent

assault person less than 13 years of age, and corruption of minors. 1         On

August 31, 2010, the trial court sentenced Appellant to concurrent terms of

five to fifteen years’ imprisonment on the rape and IDSI convictions. The

trial court imposed no further penalty for the remaining convictions.

Appellant filed a timely notice of appeal, and this Court affirmed on August

24, 2011.

       On August 22, 2012, Appellant filed a counseled PCRA petition and, on

September 24, 2012, he filed an amended PCRA petition and memorandum

of law in support thereof. On October 4, 2013, the Commonwealth filed a

motion to dismiss the PCRA petition. On January 30, 2014, the PCRA court

issued a notice of intent to dismiss the PCRA petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907.          On March 27,


____________________________________________


1
  18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3124.1, 3126(a)(7), and 6301,
respectively.




                                           -2-
J-S30038-15



2014, the PCRA court dismissed the PCRA petition.               On April 17, 2014,

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issues on appeal:

         I. Did the PCRA court err when the court dismissed
         Appellant’s petition for post-conviction relief because trial
         counsel was ineffective when he failed to object to the
         prompt complaint jury instruction?

         II. Did the PCRA court err when the court dismissed
         Appellant’s petition for post-conviction relief because trial
         counsel was ineffective when he failed to motion for a
         mistrial when the Commonwealth shifted the burden in its
         closing?

Appellant’s Brief at 2 (capitalization omitted).

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence   of   record   and   whether       it   is   free   of   legal   error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

      For ineffective assistance of counsel claims, the petitioner must

establish: “(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. Spotz, 84 A.3d 294, 311

(Pa.2014) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.2010)).

“[C]ounsel is presumed to be effective and the burden of demonstrating

ineffectiveness rests on appellant.”     Ousley, 21 A.3d at 1244 (quoting


                                      -3-
J-S30038-15



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

failure to prove any one of the three [ineffectiveness] prongs results in the

failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279). “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.’”    Spotz, 84 A.3d at 312 (quoting

Commonwealth v. King, 57 A.3d 607, 613 (Pa.2012)).           “[A] reasonable

probability is a probability that is sufficient to undermine confidence in the

outcome of the proceeding.” Id. (quoting Commonwealth v. Ali, 10 A.3d

282, 291 (Pa.2014)).

     Appellant first alleges his trial counsel was ineffective because he

failed to object to the prompt complaint jury instruction. We disagree.

     A “trial court has wide discretion in fashioning jury instructions.”

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa.Super.2013) (quoting

Commonwealth v. Brown, 911 A.2d 576, 583 (Pa.Super.2006)).                 We

review a jury instruction to determine “whether the trial court committed a

clear abuse of discretion or an error of law which controlled the outcome of

the case.” Id. (quoting Brown, 911 A.2d at 582–83). We “view the charge

as a whole, recognizing that the trial court is free to use its own form of

expression in creating the charge.”        Id. (citing Commonwealth v.

Hamilton, 766 A.2d 874, 878 (Pa.Super.2001)). The “key inquiry is whether

the instruction on a particular issue adequately, accurately and clearly




                                    -4-
J-S30038-15



presents the law to the jury, and is sufficient to guide the jury in its

deliberations.” Id. (quoting Hamilton, 766 A.2d at 878).

      A sexual assault victim need not promptly report the crime.               18

Pa.C.S. § 3105.       A defendant, however, may introduce evidence of the

victim’s failure to report the crime. Id. “The lack of a prompt complaint by

a victim of a crime, although not dispositive of the merits of the case, may

justifiably produce a doubt as to whether the offense indeed occurred, or

whether    it   was   a   recent   fabrication   by   the   complaining   witness.”

Commonwealth v. Lane, 555 A.2d 1246, 1250 (Pa.1989). “The theory is

based on the principle that a victim of a violent assault would be expected to

complain of the assault at the first safe opportunity.”       Commonwealth v.

Snoke, 580 A.2d 295, 300 (Pa.1990) (citing Lane, 555 A.2d at 1246).

Evidence of failure to make a prompt complaint should be considered when

the victim is a child. Lane, 555 A.2d at 1251.

      In Snoke, the child victim did not report that her father sexually

assaulted her until 5 months later, after viewing a film at her elementary

school dealing with sexual assault. 580 A.2d at 299. The Supreme Court of

Pennsylvania found the trial court did not err when it denied a delay in

complaint jury instruction, reasoning:

          Where no physical force is used to accomplish the
          reprehensible assault, a child victim would have no reason
          to promptly complain of the wrong-doing, particularly
          where the person involved is in a position of confidence.
          Where such an encounter is of a nature that a minor victim
          may not appreciate the offensive nature of the conduct,


                                        -5-
J-S30038-15


         the lack of a complaint would not necessarily justify an
         inference of a fabrication. As the testimony reveals in this
         case, the child had no reason to question the character of
         the conduct until her subsequent viewing of a film
         depicting this type of conduct. It is also significant that
         the party involved in the behavior was her father whom
         she would naturally trust and accept his judgment as to
         the propriety of the act. The encouragement by the father
         to maintain the confidence as to this incident also dilutes
         any inference drawn merely from a delayed complaint. In
         this setting the absence of an immediate outcry would not
         in and of itself warrant an inference that the event was a
         recent fabrication and, therefore, a charge to that effect
         was properly denied by the trial court.

Id.   The Supreme Court further stated that it recognized:

         [T]hat consideration should be given to factors inherent in
         cases involving minor victims which may explain the delay
         without reflecting unfavorably on the minor witness’
         credibility.

            The untimely complaint might be made in order to
            protect the truly guilty party, as in the case of a child
            blaming an innocent party for the wrongdoing of a
            parent. It might be the act of revenge against the
            accused prompted by dislike or by an unrelated
            dispute between either the minor complainant and
            the accused or, possibly, between the family of the
            minor complainant and the accused. It is also
            possible that the immaturity of the victim would
            cause the child not to appreciate the offensiveness of
            the encounter and the need for its prompt disclosure.

Id. at 298 (quoting Lane, 555 A.2d at 1250) (emphasis deleted).

      Here, the trial court provided the following instruction:

         The evidence of [the alleged victim’s] delay in making a
         complaint does not necessarily make her testimony
         unreliable, but it may remove from it the assurance of
         reliability accompanying the prompt complaint. Therefore,
         the delay in a complaint should be considered in evaluating
         her testimony and deciding whether the act occurred.


                                      -6-
J-S30038-15


       You must not consider the child’s delay in making a
       complaint as conclusive evidence that the act did not
       occur. Her failure to complain promptly and nature of any
       explanation for that failure are factors bearing on the
       believability of her testimony and must be considered by
       you in light of all the evidence in the case.

       And there were explanations given, explanations by her as
       to what she was thinking at age five when these things
       were happening, and then by other people in the family as
       to how much they knew and what they were willing to
       share with people; and you heard her story of how these
       things happened when she was five, and it wasn’t until she
       was talking, she thought, in confidence to a counselor that
       she would end up telling anybody about these things.

       The Supreme Court of Pennsylvania has said that prompt
       complaint, what I’ve just been describing to you, is really
       aimed at adults as victims, that an adult victim, that
       they’re a victim of a sexual offense, you would expect they
       would promptly report that to somebody; because think
       what happened to them. They know what happened to
       them.

       But a child may be different. A five-year-old might not
       react or understand what an adult understands. So what
       the Supreme Court of Pennsylvania says, where the victim
       does not comprehend the offensiveness of the contact at
       the time of the occurrence, the absence of an immediate
       complaint is understandable.

       So you have to think back to what the victim’s explanation
       was when she was five years old. What did she think was
       being done to her? What was her appreciation of this? Is it
       something you would expect a five-year-old to run off and
       report to the police? Because that’s what prompt complaint
       means, or to some authority figure immediately?

       Where no physical force is used to accomplish a sexual
       assault, a child victim, like a five-year-old, would have no
       reason to promptly complain of the wrongdoing,
       particularly where the person involved is in a position of
       confidence. Here, what [the alleged victim] was describing
       is a close family member, a person in a position of
       confidence.


                                  -7-
J-S30038-15



N.T., 4/14/10, at 105-107.

       Isolated portions of the jury instruction implied that, because the

victim was a child, she was not expected to promptly report the abuse. As a

whole, however, the instruction conveyed that the jury should consider the

victim’s delay in reporting the abuse, and any reasons for the delay, to

determine the victim’s credibility and whether the acts occurred. Read as a

whole, this was an adequate, accurate, and clear description of the relevant

law. See Snoke, 580 A.2d at 298-300. The court acted within its discretion

in issuing the instruction.

       Because the court acted within its discretion in issuing the instruction,

the claim the instruction was error is meritless and the PCRA court properly

dismissed the ineffective assistance of counsel claim based on the failure to

object to the instruction.    See Scott, 73 A.3d at 602; Spotz, 84 A.3d at

311.

       Appellant next contends trial counsel was ineffective for failing to seek

a mistrial in response to statements the prosecutor made during closing

arguments. Because a motion for a mistrial would have been unsuccessful,

this claim fails.

       A “trial court is vested with discretion to grant a mistrial whenever the

alleged prejudicial event may reasonably be said to deprive the defendant of

a fair and impartial trial.” Commonwealth v. Judy, 978 A.2d 1015, 1019

(Pa.Super.2009) (quoting Commonwealth v. Lettau, 955 A.2d 360, 363

(Pa.Super.2008)).      The    “court must discern whether       misconduct or

                                      -8-
J-S30038-15



prejudicial error actually occurred, and if so, . . . assess the degree of any

resulting prejudice.” Id.   We review an order denying a motion for mistrial

for abuse of discretion. Id.

       “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.”       Judy, 978 A.2d at

1019    (quoting   Commonwealth      v.   Sampson,    900   A.2d   887,   890

(Pa.Super.2006)). In reviewing prosecutorial remarks and an allegation of

prosecutorial misconduct we must “evaluate whether a defendant received a

fair trial, not a perfect trial.” Id. (citing Commonwealth v. Rios, 721 A.2d

1049, 1054 (Pa.1998)).

       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.”      Judy, 978

A.2d at 1020 (quoting Commonwealth v. Holley, 945 A.2d 241, 250

(Pa.Super.2008)).    Comments made by a prosecutor must be examined

within the context of defense counsel’s conduct and a “prosecutor may fairly

respond to points made in the defense closing.” Id. (citing Commonwealth

v. Chmiel, 889 A.2d 501, 544 (Pa.2005)). Moreover,

         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.


                                    -9-
J-S30038-15



Id. (quoting Holley, 945 A.2d at 250). Finally, “[p]rosecutorial misconduct

is evaluated under a harmless error standard.” Id.

       At trial, Appellant argued the victim fabricated the assault during her

2008 hospitalization. N.T., 4/14/2010, Vol. 1, 87-88.2 The victim testified

that she thought her conversation with the hospital social worker was

confidential. N.T., 4/13/2010, Vol. 1, at 166-67, 217. Appellant sought to

introduce the statute outlining the mandatory reporting requirements

applicable to various professionals to establish that when the social worker

received the allegation, she had an obligation to report it, even though the

victim thought the conversation was confidential. N.T., 4/14/2010, Vol. 1,

at 87-93.       The trial court precluded Appellant from introducing the

mandatory reporting requirement statute. Id. at 92-93.

       During Appellant’s closing argument, counsel stated:

          What didn’t the Commonwealth do? I submit to you the
          last witness is the omission. Where is the social worker?
          There’s varying testimony regarding when [the victim]
          made these revelations. When did she get released from
          the hospital? Where is the social worker? It’s not my job
          to produce the social worker. It’s not my job. It’s the
          Commonwealth’s job.

N.T., 4/14/10, Vol. 2. at 35.

       During its closing argument, the Commonwealth stated:
____________________________________________


2
  The certified record contains two transcripts dated April 14, 2010, both
labeled “Trial (Jury) Volume 1.”     This Opinion refers to the transcript
containing the testimony of witnesses as Vol. 1 and the transcript containing
closing arguments and instructions as Vol. 2.



                                          - 10 -
J-S30038-15


         And defense counsel, at some point in his closing
         arguments, made reference to the fact that the counselor
         is not here. Under the law, there’s a thing called the Health
         Information Protection Act. It’s called [Health Insurance
         Portability and Accountability Act of 1996 (“HIPPA”)]. And
         even though the woman is a mandatory discloser, even
         though she was supposed to report this doesn’t mean
         everything [the victim] said is not confidential . . . Defense
         counsel would have you believe that, yes it’s true, he
         doesn’t have a burden to present any evidence at all. He
         doesn’t have to call any witnesses. But he has her name
         and her phone number.

N.T., 4/14/10, Vol. 2 at 58-59. Defense counsel objected, arguing Appellant

did not have the burden and it was not appropriate for the prosecutor to

argue Appellant could have contacted a witness to testify. Id. at 59. The

trial court ruled that it would instruct the jury to disregard the prosecutor’s

remarks about HIPPA and mandatory reporting, and the remarks about

whether Appellant had access to the information.      Id. at 59-60. The trial

court gave the following curative instruction:

         There are a couple things you should keep in mind.

         Number one, the Commonwealth does not have the
         obligation to call every possible witness. For example,
         there were police officers involved in this case. You didn’t
         hear them testify. That’s not a deficiency in their case.

         There may have been any number of people mentioned or
         implied during the course of the trial who were not called
         to testify. We can’t hold it against the Commonwealth that
         they didn’t call those witnesses.

         Later on when I instruct you on reasonable doubt, I’ll
         explain to you what reasonable doubt is; and there can be
         reasonable doubt based on a lack of evidence. But it’s not
         reasonable doubt just because there was some witness,
         counselor, friends, police officer or detective, somebody
         who wasn’t called.


                                     - 11 -
J-S30038-15


          The DA started talking to you about HIPAA and mandatory
          reporters, and I know some of you are probably familiar
          with some of those terms if you go to the doctor, you sign
          off on a HIPAA waiver or something; and I’m going to tell
          you to disregard all of that.

          There was no testimony during the course of the trial
          involving HIPAA, involving the law of mandatory reporters,
          and there was nobody competent called to testify to any of
          that. That’s not before you.

          There are many statutes in Pennsylvania and there are
          many federal laws. If any of them is [sic] relevant, then it
          has to be introduced some way into the record and into the
          evidence, not brought up for the first time in closing
          argument, and I don’t know, I sort of paid attention during
          the trial. I don’t remember anybody saying HIPAA until
          five minutes ago or anything about mandatory reporters.

          So the evidence is what it is, and you’re to disregard that
          argument from the District Attorney.

Id. at 61-63. During its instructions prior to jury deliberation, the trial court

stated:

          Furthermore, the Defendant is presumed innocent
          throughout the trial unless and until you conclude, based
          on careful and impartial consideration of the evidence, that
          the Commonwealth has proven him guilty beyond a
          reasonable doubt.

          It is not the Defendant’s burden to prove that he is not
          guilty. Instead, it is the Commonwealth that always has
          the burden of proving each and every element of the crime
          charged and that the defendant is guilty of the crime
          beyond a reasonable doubt. The person accused of a
          crime is not required to present evidence or prove
          anything in his own behalf.

          If the Commonwealth’s evidence fails to meet its burden,
          then your verdict must be not guilty. On the other hand, if
          the Commonwealth’s evidence does prove beyond a
          reasonable doubt that the Defendant is guilty, then your
          verdict must be guilty.


                                     - 12 -
J-S30038-15




N.T., 4/14/10, at 95-96.

      Appellant’s claim lacks merit. The prosecutor’s closing argument did

not shift the burden to the defense. It stated Appellant had no burden to

present evidence.     To the extent the suggestion that Appellant had the

counselor’s information and could have presented her testimony shifted the

burden, this was cured by the court’s instructions, including the instruction

stating the defendant is presumed innocent, did not have to present

evidence, and the Commonwealth had to prove guilt beyond a reasonable

doubt.   Moreover, the Commonwealth’s statement was a fair response to

Appellant’s suggestion that the Commonwealth should have called the

counselor as a witness. Commonwealth v. Williams, 863 A.2d 505, 518

(Pa.2004) (prosecutor’s remark that defendant had opportunity to bring in

and subpoena witnesses was fair response to defense counsel’s remark

regarding “tremendous resources” Commonwealth had to build case);

Commonwealth v. Keaton, 45 A.3d 1050 (Pa.2012) (if challenged remark

is in response to the defense’s closing argument, “it will generally be

deemed fair response and hence permissible comment”); Commonwealth

v. Hawkins, 701 A.2d 492, 509-10 (Pa.1997) (prosecutor’s closing remark

that defendant did not prove someone other than appellant left saliva on the

victim was fair response to defendant’s argument someone other than

appellant left saliva on victim).




                                    - 13 -
J-S30038-15



     Because the prosecutorial misconduct claim lacks merit, Appellant’s

ineffective assistance of counsel claim also lacks merit. See Spotz, 84 A.3d

at 311.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




                                   - 14 -
