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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 Pl eas, 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 aggregate 14 to 28 years’ imprisonment, followed by f ive years’ probation imposed after the trial court, sitting without a jury, found him guilty of rape 1 and related charges for the repeated sexual abuse of his girlfriend’s daughter. On appeal, Scott raises nine issues asserting trial counsel’s ineffectiveness, trial court error, and the unconstitutio nality of a provision in the Pennsylvania Constitution. For the reasons set fo rth below, we affirm.

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1 18 Pa.C.S § 3121.J-S21039- 14

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The facts underlying Scott’s conviction were briefly sum marized by this Court in the unpublished memorandum decision affirming his judgment of sentence on direct appeal:

The present offenses arise from [Scott’s] sexual abuse of his girlfriend’s da ughter, J.W. Until she was six years old, J.W. lived in Georgia with her siblings and aunt. At tha t time, J.W.’s father died, and J.W.’s mother brought the family to Philadelphia where they resided with [Scott]. [Scott] promptly beg an to sexually abuse J.W. by touching her vagina and chest. T he abuse escalated and when the child was seven years old, [S cott] 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 grad e, J.W. told her best friend, B.D., about the abuse. B.D. en couraged J.W. to report the crimes to the authorities, and J.W. followed that advice on April 8, 2006. Two police officers arri ved at the home and took J.W. to be interviewed by a detective. While J.W. was in the detective’s office, J.W.’s mother telephoned and said 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 numerou s sexual offenses. The case proceeded to bench trial, and, on Fe bruary 8, 2007, the trial court found Scott guilty of rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, statutor y sexual assault, sexual assault, unlawful contact with minor, endangerin g 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.J-S21039- 14

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the trial court found that Scott met the criteria for classification as a sexually violent predator, 3 and imposed an aggregate sentence of 14 to 28 years’ imprisonment, followed by five years’ probation. No direct appeal was filed. On January 28, 2008, Scott filed a pro se PCRA petition. Counsel wa s appointed, and filed a petition to withdraw and acco mpanying
Turner / Finley

4 “no merit” letter. However, the docket reveals that on September 24, 2008, the trial court permitted defense counsel to withdraw his Turner

/ Finley letter, and reinstated Scott’s direct appeal rights 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 thi s Court dismissed both claims without prejudice to Scott’s right to raise them again i n a PCRA petition. See Scott , supra .
6 The Rules of Criminal Procedure provide, in pertinent part, “no discovery shall be permitted at any stage of the [PCRA] proceedi ngs, except upon (Footnote Continued Next Page)J-S21039- 14

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reports; 7 (2) permission to subpoena the victim’s medical records fr om 1999 through 2006; (3) a hearing to determine if the vict im’s diary contained any any exculpatory information; and (4) permission to sub poena all records from the Department of Human Services (DHS) from 199 9 through 2006. Although the Commonwealth turned over all police rep orts and DHS records in its files, it opposed discovery of the victim’s medical records and diary. 8 Thereafter, on June 1, 2011, PCRA counsel filed an am ended petition asserting counsel’s ineffectiveness for failing to object to the hearsay testimony of the victim’s friend, and challenging the PCRA court’s denial of the motion for discovery. 9 Scott filed a pro se objection to counsel’s amended petition, and the Commonwealth filed a moti on to dismiss the PCRA petition. On September 14, 2011, the PCRA cour t issued notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss t he petition without first conducting an evidentiary hearing, to which Scott , once again, filed a (Footnote Continued) _______________________ leave of court after a showing of exceptional circumsta nces .” Pa.R.Crim.P. 902(E)(1) (emphasis supplied).

7 PCRA counsel averred that he attempted to obtain copi es 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 pet ition that the PCRA court “denied [him] the ability to subpoena the record s.” Amended Petition Under Post Conviction Relief Act, 6/1/2011, at ¶ 11.J-S21039- 14

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pro se response. However, on October 17, 2011, the PCRA cour t 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, Scot t 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 con duct a Grazier 10 hearing to determine if Scott’s request to proceed pro se was knowing, intelligent and voluntary. See Order, 3/5/2012. Following a hearing on April 9, 2012, the PCRA court denied Scott’s petition to proceed pro se . Thereafter, counsel filed another concise statement pursua nt to Pa.R.A.P. 1925(b), raising the same two issues included in the first statement, and, additionally, arguing the trial court erred in denying Scott’s petition to proceed pro se . In an unpublished memorandum decision filed on March 5, 2013 , a panel of this Court agreed with Scott’s contention that the PCRA court “failed to hold a proper colloquy to address whether [Scott] knowingly, intelligently and voluntarily asserted hi s right to selfrepresentation[.]” Commonwealth v. Scott , 69 A.3d 1282 (Pa. Super. 2013) (unpublished memorandum at 13). Accordingly, th e panel vacated the order denying PCRA relief and remanded for a pr oper Grazier hearing.

____________________________________________ 10 Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).J-S21039- 14

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Upon remand, the PCRA court held another Grazier hearing, and, on April 11, 2013, granted Scott’s request to proceed pro se . That same day, the PCRA court reinstated its original order dismissing Scott’s PCRA petition. This timely appeal followed. 11 Scott raises the following nine issues for our review:
1. Whether trial counsel was ineffective for failing to o bject to hearsay testimony at trial?
2. Whether the PCRA court erred in denying his motion f or discovery where exceptional circumstances were shown?
3. Whether trial counsel was ineffective for failing to f ile a motion
in limine challenging the competency of the minor victim and wit ness, and whether the trial court abused its discretion in permit ting 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. Whether the trial court’s findings of fact and conclusi ons of law were “contrary to fact and reality” when the court rel ied upon “unsubstantiated[,] incorrect, false and misleading evide nce to form these findings of fact[?]”

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11 On April 26, 2013, the PCRA court ordered Scott to f ile a Rule 1925(b) concise statement, and Scott compli ed with the court’s directive on May 3, 2013.J-S21039- 14

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5. Whether the Commonwealth committed a Brady 12 violation when it withheld evidence contained in the DHS report s?
6. Whether Scott’s convictions were against the weight of the
evidence?
7. Whether trial counsel was ineffective for stipulating t o documents which inculpated Scott?
8. Whether “Article V, Section 10(C) Pa. Const. 1968 transc ends Republican Form of Government clause, Article IV, Secti on 4, United States Constitution (21 June 1788)[?]”
9. Whether the cumulative effect of the foregoing error s warrants a new trial or discharge?
See , Scott’s Brief at unnumbered p. 9.
Preliminarily, we note that to be eligible for PCR A relief, a petitioner must plead and prove, inter alia , “[t]hat the allegation of error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a )(3). “[A]n issue is waived if the petitioner could have raised it but fa iled to do so before trial, at trial, during unitary review, on appeal or in a pri or state postconviction proceeding.” 42 Pa.C.S. § 9544(b). Further, “[c]laim s not raised in the PCRA court are waived and cannot be raised for the fi rst time on appeal to this Court.” Commonwealth v. Edmiston , 851 A.2d 883, 889 (Pa. 2004)

____________________________________________ 12 Brady v. Marlyand , 373 U.S. 83 (1963).J-S21039- 14

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(citations omitted). See also Commonwealth v. Fletcher , 986 A.2d 759, 778 (Pa. 2009) (issues not preserved in PCRA petition a re 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 tria l court error, and could have been raised on direct appeal. Issues five and ei ght were not included in Scott’s pro se or amended PCRA petitions, nor were they raised in S cott’s
pro se response to the PCRA court’s Rule 907 notice. Rather, t hey were raised for the first time in Scott’s pro se Rule 1925(b) statement, and are, therefore, waived for our review. 13 Accordingly, we proceed to a discussion of Scott’s remaining claims. When reviewing an order dismissing a PCRA petition, w e must determine whether the ruling of the PCRA court is supp orted by record evidence and is free of legal error. Commonwealth v. Burkett , 5 A.3d 1260, 1267 (Pa. Super. 2010). “Great deference is gra nted to the findings of the PCRA court, and these findings will not be dist urbed unless they have no support in the certified record.” 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.J-S21039- 14

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Where, as here, many of the petitioner’s claims challe nge the 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 h is 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) Ap pellant suffered prejudice because of counsel’s action or inaction. With regard to the second, i.e. , the “reasonable basis” prong, we will conclude that counsel’s chosen strategy lacked a reasonable basis only if Appellant proves that “an alternative not chos en offered a potential for success substantially greater than the course actually pursued.” To establish the third, i.e. , the prejudice prong, Appellant must show that there is a re asonable probability that the outcome of the proceedings would have been d ifferent but for counsel’s action or inaction. Commonwealth v. Spotz , 18 A.3d 244, 259-260 (Pa. 2011) (internal citations omitted). “Failure to establish any prong of the test will defeat an ineffectiveness claim.” Commonwealth v. Keaton , 45 A.3d 1050, 1061 (Pa. 2012) (citations omitted). First, Scott argues trial counsel was ineffective for fai ling to object to the hearsay testimony of B.D., the victim’s minor frie nd with whom she confided that Scott had sexually abused her. 14 He claims B.D.’s testimon y

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14 We note that the PCRA court found this issue waived fo r vagueness. See PCRA Court Opinion, 9/17/2013, at 5-6. Although we acknowledge that Scott did not specify what hearsay testimony he was challe nging in his Rule 1925(b) concise statement, this issue was raised in his pri or direct appeal and in counsel’s amended PCRA petition. See Commonwealth v. Scott , 988 A.2d 730 (Pa. Super. 2009) (unpublished memorand um); Amended (Footnote Continued Next Page)J-S21039- 14

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was not admissible under the “prompt complaint” exceptio n to the hearsay 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 affirmati ve evidence, and (2) the victim’s statements to B.D. did not qualify as a “prompt” complaint since they were made four to five years after the alleged abuse began. See Scott’s Brief at 3

- 4. Furthermore, Scott contends the introduction of B.D .’s hearsay testimony, which corroborated the victim’s te stimony, could not be considered harmless error because the prosecution rested ent irely upon the credibility of the victim. The Pennsylvania Rules of Evidence define hearsay as a statement “that (1) the declarant does not make while testifying at the curr ent trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c)(1) -(2). Hearsay statements are generally inadmissible at trial unless an exception t o the hearsay rule applies. Pa.R.E. 802. One such exception applies to t he admission of a prior
consistent statement: [P]rior consistent statements may be admitted to corrobo rate or rehabilitate the testimony of a witness who has been im peached, expressly or impliedly, as having a faulty memory, or as having been induced to fabricate the testimony by improper mo tive 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, a t ¶ 7(1). Therefore, we decline to find it waived for vagueness.J-S21039- 14

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impeachment. It is not necessary that the impeachment be direct; it may be implied, inferred, or insinuated ei ther by crossexamination, 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). Here, B.D.’s testimony, regarding what the victim tol d her about the sexual abuse, was admissible following defense counsel’s cr oss -examination of the victim. During the cross-examination, defense counsel emphasized that the victim did not tell any adults, including he r mother, about the abuse. More importantly, defense counsel implied the v ictim fabricated the story after learning that her family might move to N ew Jersey. See N.T., 2/8/2007, at 120- 121. Therefore, B.D.’s testimony concerning what the victim had told her about the abuse, was admissible as a prior consistent statement. Because “trial counsel cannot be ineffective f or failing to raise a meritless claim[,]” 15 we conclude that Scott’s first issue fails. Next, Scott contends the PCRA court erred in denying h is request to subpoena the victim’s medical records and diary. 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 vague ness. Again, we disagree. The documents Scott sought from the PCRA court were clearly set forth in counsel’s motion for discovery. See Motion for Discovery under Post Conviction Relief Act, 1/3/2011. Therefore, we are able to discern his claim on appeal.J-S21039- 14

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to the PCRA court’s characterization, Scott’s request for the victim’s medical records was not overbroad since “[t]he request was for exact ly the relevant time period relating to the alleged sexual assaults.” Scott’s Brief at 5. Further, Scott claims that, although the victim denied she wrote about the assaults in her diary, he was entitled to review her d iary records “to determine whether [she] was being truthful.” Id. Indeed, he contends, “[i]t is likely that [the diary] could shed some light on the true story of what was going on at the time.” Id. The Pennsylvania Rules of Criminal Procedure proscribe discovery during collateral proceedings “except upon leave of cour t after a showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). “W e review the denial of a discovery request in post-conviction proceedings for a buse of discretion.” Commonwealth v. Hanible , 30 A.3d 426, 452 (Pa. 2011), cert. denied , 133 S.Ct. 835 (2013). Here, Scott has not demonstrated that either the vict im’s medical records or her diary contain any relevant, exculpatory evidence. In fact, he has not even established that any medical records exist, l et alone that they would prove the victim had not been raped. Moreove r, the victim testified that she did not write about the assaults in her diar y, and Scott has presented no evidence to the contrary. See N.T., 2/8/2007, at 125. “We will not sanction a fishing expedition when Appellant fails to provide even a minimal basis for his claim.” Commonwealth v. Lark , 746 A.2d 585, 591J-S21039- 14

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(Pa. 2000). Accordingly, we detect no abuse of discretio n on the part of the PCRA court in denying Scott’s discovery request. In his third issue, Scott argues trial counsel was ineff ective 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 age of 14, “there must be judicial inquiry as to ment al capacity.” Scott’s Brief at 7, quoting Rosche v. McCoy , 156 A.2d 307, 311 (Pa. 1959). Furthermore, he asserts that the admissibility of the v ictim’s out of court statements should have been considered in an in camera hearing pursuant to the tender years statute, 42 Pa.C.S. § 5985.1. 17

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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 mad e was 12 years of age or younger, describing any of the offe nses [relating to sexual assault] not otherwise admissible b y statute or rule of evidence, is admissible in evidence in any cr iminal 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).J-S21039- 14

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The PCRA court addressed Scott’s competenc y argument as follows: In order for a complainant to be competent, they mus t have the capacity to communicate, the mental capacity to observe and remember the occurrence, and a consciousness o f the duty to speak the truth. Commonwealth v. R.P.S. , 737 A.2 d 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 if the complainant’s testimony was credible. Commonwealth v. Blackeney , 946 A.2d 645, 653 (2008)[, cert. denied , 555 U.S. 1177 (2009)]. Generally, a witness’s competency to test ify at trial is presumed and the burden falls on the objectin g party to demonstrate incompetence. Commonwealth v. Harvey , 812 A.2d 1190, 1199 (Pa. 2002). However, when a child u nder the age of fourteen is called to testify, the competency of the minor must be independently established. Courts have held th at a separate colloquy in order to determine the understand ing of the oath is not necessary if the trial court has the opportun ity to observe the minor’s demeanor. Id. In the instant case, J.W. was able to understand the questions asked of her by co unsel and was able to frame and express intelligent answers to those questions regarding the details of the abuse. Any chall enges defense counsel would have raised regarding J.W.’s test imony would have been denied; therefore, this claim is mer itless. 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 witne ss, who were 13 and 14 years old respectively, the court sat as fact finde r in this non-jury trial, and had the opportunity to observe the witnesse s’ demeanor. There fore, we conclude the fact that “the trial court did no t engage in a distinct colloquy regarding the truthfulness aspects of [t heir] competency did not prejudice [Scott].” Harvey , supra , 812 A.2d at 1199. Accordingly, no relief is warranted on this claim.J-S21039- 14

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We also find Scott’s Section 5985.1 challenge meritless. 18 We concluded above that J.W.’s out of court statements to B. D. were admissible as prior consistent statements pursuant to Pa.R.E. 613(c)(1 ). See supra

. The tender years exception in Section 5985.1 provides y et another exception to the hearsay rule. See Hunzer , supra , 868 A.2d at 510. Because we have already found that the testimony was admissible u nder 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.Cr im.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 cri mes. Specifically, Scott challenges trial counsel’s stipulation to the admi ssibility of the victim’s DHS records. He contends the documents are “riddled with hearsay testimonials that vouch for the veracity of the victim[ .]” Scott’s Brief at 19. Moreover, he notes the records also list three other da tes of allegations, two of which were “unfounded” and one of which was “indicated .” Id.

____________________________________________ 18 Although Scott does not specify which out- of -court statements he is challenging, we presume he is referring to B.D.’s testim ony concerning the statements J.W. made to her about the abuse.J-S21039- 14

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A review of the trial transcript reveals that trial co unsel stipulated as to “the authenticity and admissibility [of the DHS recor ds] without having to have the DHS worker testify.” N.T., 2/8/2007, at 18 1. While the records may contain some hearsay testimony, we remind Scott that he was tried before the court sitting without a jury, and “trial ju dges sitting as fact finders in criminal cases are presumed to ignore prejudicial evi dence in reaching a verdict.” Commonwealth v. Dent , 837 A.2d 571, 582 (Pa. Super. 2003) (citation omitted), appeal denied , 863 A.2d 1143 (Pa. 2004). Scott simply cannot demonstrate that he was prejudiced as a result of counsel’s stipulation to the DHS records. 19 Lastly, Scott contends the cumulative effect of trial coun sel’s ineffectiv eness, and the trial court’s errors, warrants either a n ew trial, or discharge. We disagree.
It is well-settled that no number of failed ineffectiv eness 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 rej ected for lack of arguable merit, there is no basis for an acc umulation claim. Commonwealth v. Sattazahn , 597 Pa. 648, 952 A.2d 640, 671 (2008).

____________________________________________ 19 Moreover, with regard to the purported allegations o f another “indicated” incident, we note that Scott has not demonstrated that that incident involved the victim, nor that it involved an allega tion of sexual assault. Further, as we noted supra , Scott could have subpoenaed additional records from DHS, but failed to do so.J-S21039- 14

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Commonwealth v. Busanet , 54 A.3d 35, 75 (Pa. 2012), cert. denied , 134 S. Ct. 178 (U.S. 2013). Therefore, because we conclude that none of Scott’s claims raised in this appeal are worthy of relief, we affirm the orde r of the PCRA court dismissing Scott’s PCRA petition. Order af

firmed. Scott’s pro se Motion for Reconsideration/Remand is denied. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/2014