J-S35024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BROCK P. LYLES

                        Appellant                   No. 2667 EDA 2014


               Appeal from the PCRA Order August 14, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0015909-2009

BEFORE: MUNDY, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 17, 2015

      Appellant, Brock P. Lyles, appeals from the August 14, 2014 order

dismissing his first petition filed under the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      [Victim] met [Appellant] at a “worship concert” in 1998 when he
      was [12] years old and [Appellant] was at least [21] years of
      age. [Victim] approached [Appellant] and asked him if he would
      be willing to serve as his “role model” or “father figure.”
      [Appellant] acceded to the request and went on to meet
      [Victim]’s mother and grandmother in his attempt to establish a
      relationship with the family.

      Within a few months, [Appellant] began to pick up [Victim] from
      his home, and they drove around the city and conversed. On
      each of those occasions, [Victim] testified that [Appellant] would
      hold his hand and would fondle him. [Appellant] also took him
      to an apartment, and though they were ostensibly there for



* Retired Senior Judge assigned to the Superior Court
J-S35024-15


     [Appellant] to help him with his homework, the fondling resumed
     and began to escalate.

     While at this apartment, [Appellant] requested that [Victim]
     perform oral sex on him. [Victim] complied, and stopped after a
     short while.    [Appellant] then drove him home to West
     Philadelphia. A few weeks later, [Appellant] picked up [Victim]
     again, and he was taken to another apartment. While there,
     [Appellant] shaved [Victim]’s pubic area, watched him take a
     shower, and had him perform oral sex on him again. When that
     was completed, [Appellant] attempted to penetrate [Victim]’s
     anus with his penis but was unable to do so. After the two of
     them got dressed, [Appellant] drove him back home.

     There was a limited amount of contact after the incident in the
     second apartment. Though [Appellant] came to [Victim]’s home
     on several occasions to see him, he would tell his mother and
     grandmother to tell [Appellant] that he was not at home. After
     two or three years, [Appellant] stopped making any effort to
     meet with [Victim].

     In September of 2009, [Victim] was at a “praise and worship
     conference” and saw [Appellant] there. He became extremely
     upset as the memories of the sexual encounters came back to
     him. After agonizing over these memories for a few weeks,
     [Victim] ended up at the waterfront at Penn’s Landing with the
     intention of committing suicide. After he was literally talked “off
     of the ledge” there, he was taken to a police station where he
     gave a complete statement on October 22, 2009, to the police as
     to the sexual action[s] that were directed at him over the years
     by [Appellant]. . . .

     On two occasions, September 9th and December 14th 2009,
     [Appellant] gave statements to the detectives assigned to the
     case who were assisted in their investigation by secret service
     agents. In his first statement, he denied having any type of
     “inappropriate” physical contact with [Victim]. He contended
     that he broke off the mentoring relationship with [Victim] after a
     short period of time [] because of the many issues and “family
     drama” that surrounded [Victim].

     In his second statement, [Appellant] admitted that [Victim] did
     “perform oral sex on me.” He claimed that it was [Victim]’s idea
     to do so, and that it was “a very foolish mistake” despite the fact


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        that he thought that [Victim] was [18] years of age at the time.
        However, [Appellant] also said in that same statement that he
        thought [Victim] was [16], and also indicated that he actually
        thought that [Victim] was [14] years old.

        When [Appellant] testified at his trial, he admitted that he told
        the agents that [Victim] had performed oral sex on him.
        However, in his trial testimony, he contended that it never
        happened, and that he only said it did because he “was under
        emotional and psychological duress.”

Trial Court Opinion, 7/14/11, at 3-5.

        The procedural history of this case is as follows. On January 7, 2010,

Appellant was charged via criminal information with rape of an individual

under 13 years old,1 involuntary deviate sexual intercourse with an

individual under 13 years old (“IDSI”),2 unlawful contact with a minor,3

aggravated indecent assault,4 statutory sexual assault,5 sexual assault,6

corruption of minors,7 indecent assault,8 indecent exposure,9 and two counts


1
    18 Pa.C.S.A. § 3121(a)(6).
2
    18 Pa.C.S.A. § 3123(a)(6).
3
    18 Pa.C.S.A. § 6318(a)(1).
4
    18 Pa.C.S.A. § 3125(a)(1).
5
    18 Pa.C.S.A. § 3122.1.
6
    18 Pa.C.S.A. § 3124.1.
7
    18 Pa.C.S.A. § 6301(a)(1).
8
    18 Pa.C.S.A. § 3126(a)(1).
9
    18 Pa.C.S.A. § 3127(a).



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of simple assault.10 On May 17, 2010, at the conclusion of a non-jury trial,

Appellant was found guilty of IDSI, unlawful contact with a minor, sexual

assault, and corruption of minors.         The remaining charges were nolle

prossed. On September 2, 2010, Appellant was sentenced to an aggregate

term of 7 to 14 years’ imprisonment.           Appellant filed a direct appeal;

however, on August 15, 2011, that appeal was discontinued.

        On February 15, 2012, Appellant filed a pro se PCRA petition. On June

14, 2012, counsel was appointed.          On July 16, 2013, counsel filed an

amended PCRA petition. On June 12, 2014, the PCRA court issued notice of

its intent to dismiss the petition without an evidentiary hearing.             See

Pa.R.Crim.P. 907.         On August 14, 2014, the PCRA court dismissed

Appellant’s PCRA petition. This timely appeal followed.11

        Appellant presents one issue for our review

        [Was trial counsel ineffective for failing to argue that Appellant’s
        right to due process was violated because of the vague nature of
        the evidence presented at trial]?

Appellant’s Brief at 8.

        “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

10
     18 Pa.C.S.A. §§ 2701(a)(1), 2701(a)(3).
11
   On October 1, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).   On October 21, 2014, Appellant filed his concise
statement. On January 12, 2015, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.


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Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal

quotation marks and citation omitted).       “In PCRA appeals, our scope of

review is limited to the findings of the PCRA court and the evidence on the

record of the PCRA court’s hearing, viewed in the light most favorable to the

prevailing party.”   Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,

779 (Pa. Super. 2015) (en banc) (internal quotation marks and citations

omitted).

      Appellant claims that trial counsel rendered ineffective assistance by

failing to argue that the evidence was too vague to satisfy the procedural

due   process   requirements    of   the   state   and   federal   constitutions.

Specifically, he argues that his trial counsel should have moved for arrest of

judgment because Victim was unable to specify the dates on which the

sexual assaults occurred. He also argues that trial counsel’s failure to object

to the lack of specificity as to the dates prevented Appellant from raising and

proving alibi defenses. Our Supreme Court has explained:

      [T]o prove counsel ineffective, [a PCRA] petitioner must
      demonstrate: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) the petitioner suffered prejudice as a result of
      counsel’s error such that there is a reasonable probability that
      the result of the proceeding would have been different absent
      such error. Counsel is presumed to have rendered effective
      assistance.

      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead,
      if a claim fails under any necessary element of the
      ineffectiveness test, the court may proceed to that element first.



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     Finally, counsel cannot be deemed ineffective for failing to raise
     a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted).

     We conclude that Appellant’s underlying claim lacks arguable merit. In

Commonwealth v. Fanelli, 547 A.2d 1201, 1203 (Pa. Super. 1988) (en

banc), abrogated on other grounds, Commonwealth v. Hutchinson, 556

A.2d 370 (Pa. 1989), the defendant argued that his due process rights were

violated because a child victim could not give specific dates that a sexual

assault occurred. This Court explained:

     We consider [Commonwealth v.] Devlin[, 333 A.2d 888 (Pa.
     1975),] to be the polestar in our assessment of whether the
     appellant’s due process argument is to give way in favor of the
     child-victim’s right to have her assault brought to justice. In
     Devlin, our Supreme Court opted for a balancing approach to
     resolve conflicting interests of the accused vis-a-vis the victim
     when it came to the specificity required to be proven as to the
     time-frame of the alleged crime. It wrote:

        Here, as elsewhere, [t]he pattern of due process is picked
        out in the facts and circumstances of each case. Due
        process is not reducible to a mathematical formula.
        Therefore, we cannot enunciate the exact degree of
        specificity in the proof of the date of a crime which will be
        required or the amount of latitude which will be
        acceptable. Certainly the Commonwealth need not always
        prove a single specific date of the crime. Any leeway
        permissible would vary with the nature of the crime and
        the age and condition of the victim balanced against the
        rights of the accused.

Fanelli, 547 A.2d at 1204, quoting Devlin, 333 A.2d at 892 (internal

quotation marks and citations omitted).



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      In Devlin, our Supreme Court concluded that the defendant’s due

process rights were violated when the victim could only give a 14-month

window during which the assaults occurred. Devlin, 333 A.2d at 892. Our

Supreme Court came to this conclusion in one sentence, without any further

analysis. See id. As noted above, however, Devlin did not create a bright

line rule regarding the degree of specificity required for the date of an

attack. In subsequent cases interpreting Devlin, this Court has consistently

held that time frames such as the one offered by Victim in the case at bar

were not too vague as to violate the defendants’ procedural due process

rights. Cf. Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa. Super.

2007), appeal denied, 944 A.2d 756 (Pa. 2008) (“Subsequent case law has

refined the holding in Devlin.”).

      In Fanelli, like in the case at bar, the victim gave a one-year time

frame during which the assaults occurred. Fanelli, 547 A.2d at 1204. This

Court, sitting en banc, held that under the totality of the circumstances the

evidence was not too vague as to violate the defendant’s procedural due

process rights. Specifically, this Court relied upon the victim’s lack of family

support.   See id.   The same is true in the case at bar.     As noted above,

Victim sought out Appellant to serve as a father figure because he lacked a

male role model.     Furthermore, in his first statement to police Appellant

stated that he terminated his relationship with Victim because of “family

drama.” Although the victim in Fanelli was younger than Victim, this Court



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relied upon a case in which the victim was approximately the same age as

Victim.   Id. at 1205, citing Tapp v. Indiana, 269 N.E.2d 367, 369 (Ind.

1971) (victim was 11 years old).

       This Court also addressed a due process challenge in Commonwealth

v. Bethlehem, 570 A.2d 563 (Pa. Super. 1989), abrogated on other

grounds, Commonwealth v. Gerstner, 656 A.2d 108 (Pa. 1995).              In

Bethlehem, the criminal complaint alleged that there was a continuing

pattern of sexual abuse over a two-year time period. Bethlehem, 570 A.2d

at 567.   This Court held that was sufficient to satisfy the procedural due

process requirements of the state and federal constitutions. See id. at 567-

568.   The same situation is present in the case sub judice.   Victim stated

that there was a continuing pattern of sexual abuse over an extended time

period. Although Victim was not able to provide specific dates, he was able

to limit it to a one-year time period. See also Commonwealth v. Groff,

548 A.2d 1237, 1242 (Pa. Super. 1988) (citations omitted) (“Case law has

established that the Commonwealth must be afforded broad latitude when

attempting to fix the date of offenses which involve a continuous course of

criminal conduct.”).

       More recently, in Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super.

2010), appeal denied, 21 A.3d 1189 (Pa. 2011), this Court rejected a due

process challenge similar to the challenge raised by Appellant. In Brooks,

this Court held that “neither [Devlin nor Groff] holds that due process



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requires a victim of sexual abuse to provide temporal testimony of specific

incidents that occurred during a prolonged period of abuse.”      Id. at 859.

Thus, to the extent that Appellant argues that Victim was required to provide

more specific details regarding the dates of the assaults in the apartments,

that argument is without merit.    Instead, the Commonwealth was merely

required to prove that the assaults occurred within the applicable statute of

limitations period. The Commonwealth fulfilled this obligation with Victim’s

testimony. See also Pa.R.Crim.P. 560(B)(3) (a criminal information “shall

be valid and sufficient in law if it contains . . . an allegation that it was

committed on or about any date fixed within the statute of limitations[.]”).

      Finally, in Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super.

1980), the criminal information alleged that the sexual assaults occurred

sometime over a five-year period. Id. at 1373. This Court held that such a

wide timeframe did not violate the defendant’s right to procedural due

process. Id. at 1373-1374. In so holding, this Court relied upon the fact

that it was not a single assault and that the victim’s right to have her

attacker brought to justice outweighed any due process concerns. See id.

In the case at bar, Victim was able to narrow the timeframe during which

the assaults occurred to a single year – a much shorter timeframe than in

Niemetz.

      When considering the totality of the circumstances in the instant case,

Appellant’s due process rights were not violated.    Victim was young when



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the sexual assaults occurred.     He lacked a supportive family structure in

which he could have found guidance and support regarding the encounters.

Appellant did not abuse Victim on a single occasion, rather, Appellant

engaged in a continuing pattern of abuse.        Therefore, Appellant was not

prevented from advancing an alibi defense as he could have attempted to

prove that he was not in Philadelphia during that time period. In any event,

the viability of an alibi defense was substantially diminished not so much by

the time period over which the abuse occurred, but by Appellant’s own

inculpatory admission to investigators.       Accordingly, under the Devlin

balancing test, Appellant’s right to procedural due process was not violated.

As Appellant’s underlying claim lacks arguable merit, the PCRA court

correctly dismissed his PCRA petition without an evidentiary hearing.

      Order affirmed.12

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2015

12
   On July 8, 2015, we ordered the Commonwealth to furnish the PCRA court
with a copy of the trial exhibits admitted at Appellant’s trial on or before July
16, 2015. As of August 24, 2015, the Commonwealth failed to comply with
our order. We have therefore resolved this case on the basis of the certified
record in our possession. We lift the obligation to further comply with our
July 8, 2015 order as it is now moot. We find that the Commonwealth has
waived any arguments related to the exhibits admitted at trial for failing to
comply with this Court’s July 8, 2015 order.


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