J-S21039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

ANTHONY SCOTT

                             Appellant                No. 2330 EDA 2013


                  Appeal from the PCRA Order October 17, 2011
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0702311-2006


BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                          FILED SEPTEMBER 24, 2014

        Anthony Scott appeals, pro se, from the order entered October 17,

2011, in the Philadelphia County Court of Common Pleas, denying his

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

9541 et seq.       Scott seeks relief from the judgment of sentence of an



imposed after the trial court, sitting without a jury, found him guilty of rape1

and related charges for the repeated



ineffectiveness, trial court error, and the unconstitutionality of a provision in

the Pennsylvania Constitution. For the reasons set forth below, we affirm.

____________________________________________


1
    18 Pa.C.S § 3121.
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Court in the unpublished memorandum decision affirming his judgment of

sentence on direct appeal:


                           ughter, J.W. Until she was six years old, J.W.


       where they resided with [Scott]. [Scott] promptly began to
       sexually abuse J.W. by touching her vagina and chest. The
       abuse escalated and when the child was seven years old, [Scott]
       raped her. [Scott] continued to have sexual intercourse with
       J.W., and after she was ten years old, started to force her to
       give him oral sex. In 2006, when she was in sixth grade, J.W.
       told her best friend, B.D., about the abuse. B.D. encouraged
       J.W. to report the crimes to the authorities, and J.W. followed
       that advice on April 8, 2006. Two police officers arrived at the
       home and took J.W. to be interviewed by a detective. While J.W.

       that she did not believe the allegations and that J.W. was not
       permitted to return home.

Commonwealth v. Scott, 988 A.2d 730 (Pa. Super. 2009) (unpublished

memorandum at 2).

       Scott was subsequently arrested and charged with numerous sexual

offenses. The case proceeded to bench trial, and, on February 8, 2007, the

trial court found Scott guilty of rape, involuntary deviate sexual intercourse,

aggravated indecent assault, indecent assault, statutory sexual assault,

sexual assault, unlawful contact with minor, endangering the welfare of

children, corruption of minors, and simple assault.2 On October 12, 2007,
____________________________________________


2
  18 Pa.C.S. §§ 3121, 3123(a)(1), 3125, 3126(a)(1), 3122.1, 3124.1,
6318(a)(6), 4304, 6301(a), and 2701(a), respectively.



                                           -2-
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the trial court found that Scott met the criteria for classification as a sexually

violent predator,3



        On January 28, 2008, Scott filed a pro se PCRA petition. Counsel was

appointed,     and     filed   a   petition    to   withdraw   and   accompanying

Turner/Finley4

September 24, 2008, the trial court permitted defense counsel to withdraw

his Turner/Finley                                                         nunc pro

tunc. Scott then filed a direct appeal nunc pro tunc, and on November 25,

2009, a panel of this Court affirmed his judgment of sentence. See Scott,

supra.5

        On February 16, 2010, Scott filed a timely, pro se PCRA petition.

Thereafter, he filed pro se amended and supplemental petitions both before

and after counsel was appointed on September 3, 2010.                On January 3,

2011, PCRA counsel filed a motion for discovery,6 seeking:           (1) the police
____________________________________________


3
    42 Pa.C.S. §§ 9799.10 et seq.
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5
  Scott raised only two issues in his direct appeal, both challenging the
ineffective assistance of trial counsel. A panel of this Court dismissed both
                                                                   n a PCRA
petition. See Scott, supra.
6
                                                               discovery
shall be permitted at any stage of the [PCRA] proceedings, except upon
(Footnote Continued Next Page)


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J-S21039-14



reports;7



any exculpatory information; and (4) permission to subpoena all records

from the Department of Human Services (DHS) from 1999 through 2006.

Although the Commonwealth turned over all police reports and DHS records
                                                                         8



      Thereafter, on June 1, 2011, PCRA counsel filed an amended petition




the motion for discovery.9           Scott filed a pro se

amended petition, and the Commonwealth filed a motion to dismiss the

PCRA petition.     On September 14, 2011, the PCRA court issued notice,

pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without

first conducting an evidentiary hearing, to which Scott, once again, filed a
                       _______________________
(Footnote Continued)

leave of court after a showing of exceptional circumstances
Pa.R.Crim.P. 902(E)(1) (emphasis supplied).
7
  PCRA counsel averred that he attempted to obtain copies of the police
reports from prior counsel, but was unsuccessful. See Motion for Discovery
Under Post Conviction Relief Act, 1/3/2011, at ¶ 5(a).
8
   The Commonwealth further asserted that none of these records were in its
files.
9
  Although no order specifically denying the motion for discovery is included
in the certified record, Scott avers in his amended petition that the PCRA

Under Post Conviction Relief Act, 6/1/2011, at ¶ 11.



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pro se response. However, on October 17, 2011, the PCRA court dismissed

the PCRA petition, and Scott filed a timely notice of appeal.

        While that appeal was pending, and after counsel filed a Rule 1925(b)

concise statement of errors complained of on appeal, Scott filed a pro se

petition for withdrawal of counsel, claiming that PCRA counsel ignored the

issues he wished to raise on appeal, and requesting to proceed pro se. On

March 5, 2012, this Court directed the PCRA court to conduct a Grazier10

hearing                                                         pro se was knowing,

intelligent and voluntary.       See Order, 3/5/2012.       Following a hearing on

                                                                         pro se.

        Thereafter, counsel filed another concise statement pursuant to

Pa.R.A.P. 1925(b), raising the same two issues included in the first



petition to proceed pro se. In an unpublished memorandum decision filed on

March 5, 2013



knowingly,     intelligently   and     voluntarily   asserted    his   right   to   self-

                        Commonwealth v. Scott, 69 A.3d 1282 (Pa. Super.

2013) (unpublished memorandum at 13).                Accordingly, the panel vacated

the order denying PCRA relief and remanded for a proper Grazier hearing.


____________________________________________


10
     Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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       Upon remand, the PCRA court held another Grazier hearing, and, on

                                      request to proceed pro se. That same day,



This timely appeal followed.11

       Scott raises the following nine issues for our review:

       1.     Whether trial counsel was ineffective for failing to object to

hearsay testimony at trial?

       2.     Whether the PCRA court erred in denying his motion for

discovery where exceptional circumstances were shown?

       3.     Whether trial counsel was ineffective for failing to file a motion

in limine challenging the competency of the minor victim and witness, and

whether the trial court abused its discretion in permitting the Commonwealth

to introduce an out-of-court statement of the minor victim and witness in

derogation of 42 Pa.C.S. § 5985.1?

       4.




____________________________________________


11
  On April 26, 2013, the PCRA court ordered Scott to file a Rule 1925(b)
concise statement, and Scott compli
2013.




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        5.    Whether the Commonwealth committed a Brady12 violation

when it withheld evidence contained in the DHS reports?

        6.

evidence?

        7.    Whether      trial   counsel     was   ineffective   for   stipulating   to

documents which inculpated Scott?

        8.

Republican Form of Government clause, Article IV, Section 4, United States



        9.    Whether the cumulative effect of the foregoing errors warrants

a new trial or discharge?

See


        Preliminarily, we note that to be eligible for PCRA relief, a petitioner

must plead and prove, inter alia



waived if the petitioner could have raised it but failed to do so before trial, at

trial, during unitary review, on appeal or in a prior state postconviction



PCRA court are waived and cannot be raised for the first time on appeal to

               Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004)

____________________________________________


12
     Brady v. Marlyand, 373 U.S. 83 (1963).



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(citations omitted). See also Commonwealth v. Fletcher, 986 A.2d 759,

778 (Pa. 2009) (issues not preserved in PCRA petition are waived on

appeal).

       Based upon the foregoing, we find issues four, five, six, and eight are

waived for our review. Issues four and six assert trial court error, and could

have been raised on direct appeal. Issues five and eight were not included

            pro se

pro se

                                          pro se Rule 1925(b) statement, and are,

therefore, waived for our review.13 Accordingly, we proceed to a discussion



       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d



of the PCRA court, and these findings will not be disturbed unless they have

                                               Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).




____________________________________________


13
   We note that Scott raised a Brady claim in a September, 2010 application
for leave to supplement his pro se PCRA petition. However, that Brady
claim referred to a purportedly missing police report, not DHS records.



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ineffectiveness of counsel, our review is well-settled:

       We begin our analysis of ineffectiveness claims with the
       presumption that     counsel is effective.  To prevail on his
       ineffectiveness claims, Appellant must plead and prove, by a
       preponderance of the evidence, three elements: (1) the
       underlying legal claim has arguable merit; (2) counsel had no
       reasonable basis for his action or inaction; and (3) Appellant

       regard to the second, i.e.

                                                                     en
       offered a potential for success substantially greater than the
                                                              i.e., the
       prejudice prong, Appellant must show that there is a reasonable
       probability that the outcome of the proceedings would have been
       d

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal



                             Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

       First, Scott argues trial counsel was ineffective for failing to object to



confided that Scott had sexually abused her.14                                 y

____________________________________________


14
  We note that the PCRA court found this issue waived for vagueness. See
PCRA Court Opinion, 9/17/2013, at 5-6. Although we acknowledge that
Scott did not specify what hearsay testimony he was challenging in his Rule
1925(b) concise statement, this issue was raised in his prior direct appeal
                                           See Commonwealth v. Scott,
988 A.2d 730 (Pa. Super. 2009) (unpublished memorandum); Amended
(Footnote Continued Next Page)


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rule, pursuant to Pa.R.E. 613(c)(1), because (1) it was not offered to rebut a

specific charge of bias, but rather presented as affirmative evidence, and (2)



they were made four to five years after the alleged abuse began.             See

                   -

                                                           stimony, could not be

considered harmless error because the prosecution rested entirely upon the

credibility of the victim.

      The Pennsylvania Rules of Evidence define hearsay as a statement

                                                                      ent trial or

hearing; and (2) a party offers in evidence to prove the truth of the matter

                                                    -(2). Hearsay statements are

generally inadmissible at trial unless an exception to the hearsay rule

applies. Pa.R.E. 802. One such exception applies to the admission of a prior

consistent statement:

      [P]rior consistent statements may be admitted to corroborate or
      rehabilitate the testimony of a witness who has been impeached,
      expressly or impliedly, as having a faulty memory, or as having
      been induced to fabricate the testimony by improper motive or
      influence. Admission of prior consistent statements on such
      grounds is a matter left to the sound discretion of the trial court,
      to be decided in light of the character and degree of
                       _______________________
(Footnote Continued)

Petition Under Post Conviction Relief Act, 6/1/2011, at ¶ 7(1). Therefore, we
decline to find it waived for vagueness.



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J-S21039-14


        impeachment. It is not necessary that the impeachment be
        direct; it may be implied, inferred, or insinuated either by cross-
        examination, presentation of conflicting evidence, or a
        combination of the two.

Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005) (citation

omitted), appeal denied, 880 A.2d 1237 (Pa. 2005).             See Pa.R.Crim.P.

613(c)(1).



                                                                    -examination

of the victim.     During the cross-examination, defense counsel emphasized

that the victim did not tell any adults, including her mother, about the

abuse. More importantly, defense counsel implied the victim fabricated the

story after learning that her family might move to New Jersey. See N.T.,

2/8/2007, at 120-

victim had told her about the abuse, was admissible as a prior consistent

                                                                          raise a
                     15



        Next, Scott contends the PCRA court erred in denying his request to
                                                    16
                                                         He argues that, contrary

____________________________________________


15
     Commonwealth v. Buterbaugh, 91 A.3d 1247, 1259 (Pa. Super. 2014).
16
   The PCRA court also found this issue waived for vagueness. Again, we
disagree. The documents Scott sought from the PCRA court were clearly set
                                       See Motion for Discovery under Post
Conviction Relief Act, 1/3/2011. Therefore, we are able to discern his claim
on appeal.



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J-S21039-14




Further, Scott claims that, although the victim denied she wrote about the



                                               Id.

is likely that [the diary] could shed some light on the true story of what was

going on at the        Id.

      The Pennsylvania Rules of Criminal Procedure proscribe discovery




of a discovery request in       post-conviction proceedings for     abuse   of

              Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011),

cert. denied, 133 S.Ct. 835 (2013).



records or her diary contain any relevant, exculpatory evidence. In fact, he

has not even established that any medical records exist, let alone that they

would prove the victim had not been raped. Moreover, the victim testified

that she did not write about the assaults in her diary, and Scott has

presented no evidence to the contrary. See

will not sanction a fishing expedition when Appellant fails to provide even a

                              Commonwealth v. Lark, 746 A.2d 585, 591




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(Pa. 2000). Accordingly, we detect no abuse of discretion on the part of the



        In his third issue, Scott argues trial counsel was ineffective for failing

to file a motion in limine challenging the competency of the minor victim and

witness. Scott contends that where, as here, the witnesses are under the



Brief at 7, quoting Rosche v. McCoy, 156 A.2d 307, 311 (Pa. 1959).



statements should have been considered in an in camera hearing pursuant

to the tender years statute, 42 Pa.C.S. § 5985.1.17
____________________________________________



17
     The Tender Years statute provides, in pertinent part:

        (a) General rule.--An out-of-court statement made by a child
        victim or witness, who at the time the statement was made was
        12 years of age or younger, describing any of the offenses
        [relating to sexual assault] not otherwise admissible by statute
        or rule of evidence, is admissible in evidence in any criminal or
        civil proceeding if:

        (1) the court finds, in an in camera hearing, that the evidence is
        relevant and that the time, content and circumstances of the
        statement provide sufficient indicia of reliability; and

        (2) the child either:

        (i) testifies at the proceeding; or

        (ii) is unavailable as a witness.

42 Pa.C.S. § 5985.1(a).




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                                                     y argument as follows:

             In order for a complainant to be competent, they must
        have the capacity to communicate, the mental capacity to
        observe and remember the occurrence, and a consciousness of
        the duty to speak the truth. Commonwealth v. R.P.S., 737
        A.2d 747, 749 (Pa. Super. 1999)(quoting Rosche v. McCoy,
        156 A.2d 307, 310 (Pa. 1959)). Once it is determined that the
        complainant is competent it is up to the fact finder to determine
                                                     Commonwealth v.
        Blackeney, 946 A.2d 645, 653 (2008)[, cert. denied, 555 U.S.

        trial is presumed and the burden falls on the objecting party to
        demonstrate incompetence. Commonwealth v. Harvey, 812
        A.2d 1190, 1199 (Pa. 2002). However, when a child under the
        age of fourteen is called to testify, the competency of the minor
        must be independently established. Courts have held that a
        separate colloquy in order to determine the understanding of the
        oath is not necessary if the trial court has the opportunity to
                                            Id. In the instant case, J.W.
        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 abuse. Any challenges

        would have been denied; therefore, this claim is meritless.

PCRA Court Opinion, 9/17/2013, at 7-8. We agree. Although the trial court

should have conducted a separate colloquy, pursuant to Harvey, to

determine the competency of the minor victim and witness, who were 13

and 14 years old respectively, the court sat as fact finder in this non-jury



There

distinct colloquy regarding the truthfulness aspects of [their] competency did

                         Harvey, supra, 812 A.2d at 1199. Accordingly, no

relief is warranted on this claim.



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                                                                       18
                                                                            We



as prior consistent statements pursuant to Pa.R.E. 613(c)(1).      See supra.

The tender years exception in Section 5985.1 provides yet another exception

to the hearsay rule.      See Hunzer, supra, 868 A.2d at 510.      Because we

have already found that the testimony was admissible under Rule 613(c)(1),

trial counsel was not ineffective for failing to raise a challenge under Section

5985.1.     See Commonwealth v. Curley, 910 A.2d 692, 698-699 (Pa.

Super. 2006) (discussing the differences between Pa.R.Crim.P. 613(c) and

42 Pa.C.S. § 5985.1), appeal denied, 927 A.2d 622 (Pa. 2007). Therefore,

again, no relief is warranted.

       In his seventh issue, Scott argues counsel was ineffective for

stipulating to documents that inculpated him in the crimes.        Specifically,



DHS records.        He contends the documents are



Moreover, he notes the records also list three other dates of allegations, two

                                                                Id.




____________________________________________


18
     Although Scott does not specify which out-of-court statements he is

statements J.W. made to her about the abuse.



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       A review of the trial transcript reveals that trial counsel stipulated as




may contain some hearsay testimony, we remind Scott that he was tried



in criminal cases are presumed to ignore prejudicial evidence in reaching a

             Commonwealth v. Dent, 837 A.2d 571, 582 (Pa. Super. 2003)

(citation omitted), appeal denied, 863 A.2d 1143 (Pa. 2004). Scott simply



stipulation to the DHS records.19



ineffectiv

discharge. We disagree.

       It is well-settled that no number of failed ineffectiveness claims
       may collectively warrant relief if they fail to do so individually.
       Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532
       (2009). Accordingly, where ineffectiveness claims are rejected
       for lack of arguable merit, there is no basis for an accumulation
       claim. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d
       640, 671 (2008).


____________________________________________


19

incident, we note that Scott has not demonstrated that that incident
involved the victim, nor that it involved an allegation of sexual assault.
Further, as we noted supra, Scott could have subpoenaed additional records
from DHS, but failed to do so.




                                          - 16 -
J-S21039-14



Commonwealth v. Busanet, 54 A.3d 35, 75 (Pa. 2012), cert. denied, 134

S. Ct. 178 (U.S. 2013).



this appeal are worthy of relief, we affirm the order of the PCRA court



     Order af               pro se Motion for Reconsideration/Remand is

denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2014




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