J-S80041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

KEVIN GOBLE, SR.

Appellant No. 153 MDA 2016

Appeal from the PCRA Order December 22, 2015

in the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0003767-2009

BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED DECEMBER 21, 2016

Appellant, Kevin Goble, Sr., appeals from the December 22, 2015 

order denying his petition filed under the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. In addition, appellate counsel, Matthew P. Kelly, 

Esq., has filed an application seeking to withdraw representation, pursuant 

to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). After careful 

review, we grant counsel’s application to withdraw and affirm the order of 

the PCRA court.

On September 16, 2010, a jury convicted Appellant of rape of a child, 

involuntary deviate intercourse with a child, aggravated indecent assault of a 

child, and three counts of indecent assault of a person less than thirteen 
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years of age as a result of the ongoing sexual abuse of his stepdaughter.1 

On March 4, 2011, the court sentenced Appellant to an aggregate sentence 

of 204 to 408 months of incarceration. Appellant timely filed post-sentence 

motions arguing that the court abused its discretion by imposing an 

excessive sentence which failed to adequately consider mitigating 

circumstances. The court denied Appellant’s motion.

Appellant timely appealed, but his appeal was dismissed for failure to 

file a brief. Appellant’s direct appeal rights were reinstated pursuant to a 

PCRA petition. On May 28, 2014, this Court denied Appellant’s direct appeal. 

See Commonwealth v. Goble, 104 A.3d 61 (Pa. Super. 2014) 

(unpublished memorandum).

Appellant pro se filed a petition seeking PCRA relief. Counsel was 

appointed. Following an evidentiary hearing, on December 22, 2015, the 

PCRA court denied Appellant’s petition. PCRA counsel was granted leave to 

withdraw representation.

Appellant timely appealed to this Court and, after appellate counsel 

was appointed, filed a Pa.R.A.P. 1925(b) statement of errors. The trial court 

did not issue a responsive opinion but adopted its December 22, 2015 

memorandum opinion denying Appellant’s PCRA petition.

____________________________________________

1 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(b), and 3126(a)(7), respectively.
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On August 11, 2016, appellate counsel filed in this court a 

Turner/Finley brief2and an application to withdraw as counsel. The brief 

sets forth the following issues Appellant seeks to raise on appeal:

I. Whether trial counsel was ineffective in failing to present 

evidence that the victim was pressured to testify.

II. Whether trial counsel was ineffective in failing to argue 

[Appellant’s] innocence to the jury.

III. Whether trial counsel was ineffective in failing to prove to 

the jury that Genevieve Goble had a bias or motive to testify 

against [Appellant].

IV. Whether the Commonwealth violated [Appellant’s] right to a 

speedy trial pursuant to Pa.R.Crim.P. 600.

V. Whether trial counsel was ineffective in failing to object to the 

Commonwealth’s opening statement that she intended to prove 

[Appellant] was guilty.

VI. Whether trial counsel was ineffective in coercing [Appellant] 

to waive his spousal privilege against his wife testifying.

Turner/Finley Brief at 1. Counsel forwarded a copy of his brief and motion 

to Appellant and advised him of his right to proceed pro se. In his pro se

____________________________________________

2 We would note that counsel submitted his Turner/Finley brief pursuant to 

the requirements of Anders v. California, 386 U.S. 738 (1967). Although 

a no merit letter is the appropriate filing, as an Anders brief provides 

greater protection to the defendant, we may accept an Anders brief in lieu 

of a Turner/Finley letter. See Commonwealth v. Fusselman, 866 A.2d 

1109, 111 n.3 (Pa. Super. 2004). 
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response, Appellant argues that the allegations of no merit are false and not 

supported by the record.3 Appellant’s Reply Brief at 1-6.

We review an order denying a petition under the PCRA to determine 

whether the findings of the PCRA court are supported by the evidence of 

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 

1170 (Pa. 2007). We afford the court’s findings deference unless there is no 

support for them in the certified record. Commonwealth v. Brown, 48 

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 

995 A.2d 1184, 1189 (Pa. Super. 2010)).

Before considering the merits of Appellant’s arguments, we must 

review PCRA counsel’s request to withdraw from representation. When 

requesting to withdraw, PCRA counsel must submit:

1) A “no-merit” letter by PCRA counsel detailing the nature and 

extent of his review;

2) The “no-merit” letter by PCRA counsel listing each issue the 

petitioner wished to have reviewed;

3) The PCRA counsel’s explanation, in the letter, of why the 

issues were meritless.

See Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (quoting 

Finley, supra, at 215). “Counsel must also send to the petitioner: (1) a 

copy of the ‘no-merit’ letter/brief; (2) a copy of counsel's petition to 

____________________________________________

3 Appellant also raises, in each of his issues, a number of layered claims of 

the ineffectiveness of PCRA counsel, which we will address separately.
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withdraw; and (3) a statement advising petitioner of the right to proceed pro 

se or by new counsel.” Commonwealth v. Muzzy, 141 A.3d 509, 511 (Pa. 

Super. 2016).

[W]here counsel submits a petition and no-merit letter that do 

satisfy the technical demands of Turner/Finley, the court—trial 

court or this Court—must then conduct its own review of the 

merits of the case. If the court agrees with counsel that the 

claims are without merit, the court will permit counsel to 

withdraw and deny relief. By contrast, if the claims appear to 

have merit, the court will deny counsel's request and grant 

relief, or at least instruct counsel to file an advocate's brief.

Id. at 510-11 (citation omitted). 

Instantly, we conclude that Mr. Kelly has complied with the 

requirements of Turner/Finley. Specifically, Mr. Kelly’s brief details the 

nature and extent of his review, addresses the issues Appellant raised in his 

PCRA and Rule 1925(b) statement, and determines that the issues lack 

merit. Mr. Kelly provides a discussion of Appellant’s claims and explains why 

those issues are meritless. Additionally, Mr. Kelly served Appellant with a 

copy of his petition to withdraw and brief and advised Appellant of his right 

to proceed pro se or with privately retained counsel. Accordingly, we will 

conduct an independent review of Appellant’s claim.

All of Appellant’s claims raise issues of ineffective assistance of 

counsel. We presume counsel is effective. Commonwealth v. 

Washington, 927 A.2d 586, 594 (Pa. 2007). To overcome this presumption 

and establish the ineffective assistance of counsel, a PCRA petitioner must 

prove, by a preponderance of the evidence: “(1) the underlying legal issue 
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has arguable merit; (2) that counsel’s actions lacked an objective reasonable 

basis; and (3) actual prejudice befell the petitioner from counsel’s act or 

omission.” Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) 

(citations omitted). “A petitioner establishes prejudice when he 

demonstrates that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different. Id. A claim will be denied if the petitioner fails to meet any one of 

these requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267 

(Pa. Super. 2008) (citing Commonwealth v. Natividad, 938 A.2d 310, 322 

(Pa. 2007)); Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 

2008).

First, Appellant claims that trial counsel was ineffective in failing to 

present evidence that the victim was pressured to testify. See 

Turner/Finley Brief at 1; Appellant’s Reply Brief at 1.4 Appellant argues 

that Luzerne County Children and Youth Services (CYS) pressured the victim 

and “tainted” her testimony and references, in support, a letter written by 

the victim in which she stated that she hated her caseworker and wanted to 

return home to her family.5 Appellant’s Reply Brief at 1-4. 

____________________________________________

4 We will address Appellant’s claims of PCRA counsel ineffectiveness at the 

conclusion of this opinion.

5 A copy of this letter was not included in the certified record.
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The competency of a child to testify is a threshold legal issue the trial 

court must decide, and an appellate court will not disturb that determination 

absent an abuse of discretion. Commonwealth v. Washington, 722 A.2d 

643, 646 (Pa. 1998). Every witness is presumed competent; a party who 

challenges the competency of a minor witness must prove by clear and 

convincing evidence that the witness lacks the minimal capacity 1) to 

communicate, 2) to observe an event and accurately recall that observation, 

and 3) to understand the necessity to speak the truth. See Pa.R.E. 601(a); 

Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011). “Taint” is 

the implantation of false memories or distortion of actual memories through 

improper and suggestive interview techniques. Pena, 31 A.3d at 707. It 

implicates the second prong of the competency test, namely, the mental 

capacity to observe the occurrence itself. Id. The party challenging a 

witness must come forward with evidence before there is a competency 

hearing, and bears the burden of proving by clear and convincing evidence 

that the witness’s memory has been tainted on the specific question. 

Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006). 

Appellant relies solely upon the letter to prove taint. The record 

reflects that counsel did in fact request a taint hearing based on this letter, 

which the trial court denied, holding that the letter did not rise to the level of 

taint. See Notes of Testimony (N. T.), Trial, 9/15/10 to 9/16/10, at 10-19. 

However, Appellant was permitted to cross-examine the victim extensively 
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regarding the letter. Id. at 71-75. Counsel then litigated this issue on 

direct appeal. A panel of this Court adopted the trial court’s analysis of this 

issue. See Goble, 104 A.3d 61 at *4-5. No nexus existed between the 

case worker wanting the victim to testify and the victim’s ambivalence about 

her situation, and no techniques were used during the interview of the child 

that would rise to the level of taint. See Goble, 104 A.3d 61 at *4-5. 

Accordingly, Appellant’s claim lacks arguable merit. See Johnson, 966 A.2d 

at 533.

In his second issue, Appellant claims trial counsel was ineffective in 

failing to argue his innocence to the jury. Turner/Finley Brief at 6; 

Appellant’s Reply Brief at 2. Specifically, Appellant argues that counsel was 

ineffective in failing to present “evidence of [his] actual innocence” and the 

victim’s “history of making false alegations [sic] of sexual abuse against 

others in the past.” Appellant’s Reply Brief at 2. 

As a first note, counsel did argue Appellant’s innocence during both his 

opening statement and closing argument.6 See N. T. Trial, at 29-50. 

Further, counsel extensively cross-examined the victim, the victim’s mother, 

and the sexual assault nurse who examined the victim. Id. at 64-71, 90-93, 

125-137. Appellant chose to testify in his own defense, admitting that he 

____________________________________________

6 Although PCRA counsel references counsel’s closing argument in his brief, 

it does not appear from the certified record that closing arguments were 

transcribed. Turner/Finley Brief at 6.
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was aware the victim was nine years old at the time of the assaults. Id. at 

200-01. Further, Appellant admitted to ejaculating while the victim 

performed oral sex on him. Id. at 210. Appellant claimed that he was the 

victim of the assault, rather than the child. Id. The jury, sitting as a factfinder, clearly disbelieved Appellant’s testimony. See, e.g., 

Commonwealth v. Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015) 

(noting that the fact-finder is free to believe all, part, or none of the 

evidence, and determine the credibility of witnesses). Thus, the claim lacks 

arguable merit. See Johnson, 966 A.2d at 533.

Additionally, Appellant claims that counsel was ineffective for his 

failure to present evidence concerning the victim’s disclosure of a past 

sexual assault. Appellant litigated the court’s grant of the Commonwealth’s 

motion in limine to preclude testimony on direct appeal, and this Court 

affirmed.

The Rape Shield Law governs the admissibility of evidence regarding a 

victim’s past sexual conduct; the law bars evidence of the victim’s past 

sexual conduct, opinion evidence thereto, and reputation evidence thereto, 

except evidence of the victim’s past sexual conduct with the defendant 

where consent is at issue. See 18 Pa.C.S. § 3104. Our Court has previously 

held that assaultive sexual activity is covered by the Rape Shield Law, 

particularly where prior sexual conduct is irrelevant to a subsequent assault. 
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Commonwealth v. Johnson, 566 A.2d 1197, 1199 (Pa. Super. 1989), 

aff'd, 638 A.2d 940 (Pa. 1994). 

An examination of the record shows that trial counsel argued that any 

past assaults were relevant to the extent the victim made claims that were 

unfounded. See N. T. Trial, at 4. The Commonwealth responded that the 

allegations had not been reported or pursued and there was no finding of 

any kind. Id. at 4-5. The trial court granted the Commonwealth’s motion, 

precluding mention of any assaults, but allowed for reconsideration if the 

victim opened the door. Id. at 6. No additional assaults were mentioned 

during testimony.

On direct appeal, Appellant challenged the court’s ruling. This Court 

affirmed on the basis of the trial court’s analysis, which noted that the 

evidence was inadmissible under the Rape Shield Law, as the unreported, 

uninvestigated incident of sexual assault did not concern Appellant nor the 

issue of consent. See Goble, 104 A.3d 61 at *4. Moreover, Appellant 

mischaracterizes the victim’s claims as constituting a “history of false 

allegations” that would require further investigation. At no time was 

argument or evidence introduced that would indicate the allegations were 

false. This claim lacks arguable merit. See Johnson, 966 A.2d at 533. 

In his third issue, Appellant claims trial counsel was ineffective in 

failing to prove to the jury that Genevieve Goble had a bias or motive to 

testify against him. Turner/Finley Brief at 7; Appellant’s Reply Brief at 3. 
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Specifically, Appellant argued that Ms. Goble had testified for the 

Commonwealth pursuant to a “deal” in which she would regain custody of 

her children. Id.

It is a general rule that the accused has the right to cross-examine 

Commonwealth witnesses for bias. See Commonwealth v. Cox, 728 A.2d 

923 (Pa. 1999). In the instant case, trial counsel cross-examined Ms. Goble 

regarding the fact that her children were in foster care. See N. T. Trial, 

131-34. Specifically, counsel inquired whether Ms. Goble agreed to testify in 

an effort to regain custody of her children. Id. at 134. However, Ms. Goble 

rejected this suggestion because she did not think she would ever be 

allowed to have her three children return to the home. Id. at 135. Thus, 

the claim is not of arguable merit, as the record reflects that the jury was 

apprised of Ms. Goble’s potential bias.

Appellant also argued in his PCRA petition, and again in his reply to 

Mr. Kelly’s Turner/Finley brief, that counsel was ineffective for failure to 

pursue an additional issue regarding Ms. Goble’s testimony. Appellant’s 

Brief at 3. Specifically, during a recess at trial, counsel suggested that CYS 

intended to remove Ms. Goble’s remaining child from her custody. See N. T. 

Trial at 171-74. According to counsel, CYS threatened removal in response 

to Ms. Goble’s trial testimony. Id. Counsel argued that this was proof that 

CYS had pressured Ms. Goble to testify. Id. at 175. 
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The trial court excluded any further testimony regarding this matter, 

as Ms. Goble had already testified, and because the statements were 

speculative and hearsay.7 At sidebar, Ms. Goble further clarified that the 

caseworker had not made any promises to her regarding her testimony and 

that she had not been threatened. Id. at 177. The trial court noted that if 

Appellant had any additional information to present regarding the issue as 

the trial continued, he would be given the opportunity. Id. at 175-76. 

Appellant did not, nor does he now, provide any additional information that 

could or should have been raised. Counsel could not be ineffective for failing 

to further pursue a meritless claim. See Commonwealth v. Parker, 469 

A.2d 582, 584 (Pa. 1983).

In his fourth issue, Appellant claims that the Commonwealth violated 

his right to a speedy trial pursuant to Pa.R.Crim.P. 600 and that counsel was 

ineffective for failing to file a motion to dismiss. Turner/Finley Brief at 8; 

Appellant’s Reply Brief at 4.

The record reflects that the criminal complaint against Appellant was 

filed October 5, 2009. Thus, the mechanical run date would have been 

October 5, 2010. See Pa.R.Crim.P. 600(2)(a) (“Trial in a court case in 

which a written complaint is filed against the defendant shall commence 

within 365 days from the date on which the complaint is filed.”) Appellant’s 

____________________________________________

7 Counsel suggested that CYS had called Ms. Goble’s current paramour, who 

in turn called Ms. Goble. See N. T. Trial at 171-74.
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trial commenced September 15, 2010. As the trial commenced within the 

365-day period prescribed by Pa.R.Crim.P. 600, Appellant’s claim lacks 

merit. See Johnson, 966 A.2d at 533.

In his fifth issue, Appellant claims that trial counsel was ineffective in 

failing to object to the Commonwealth’s opening statement, where the 

assistant district attorney stated that she intended to prove Appellant was 

guilty.

With regard to a prosecutor’s opening statement,

Generally, a prosecutor's arguments to the jury are not a basis 

for the granting of a new trial unless the unavoidable effect of 

such comments would be to prejudice the jury, forming in their 

minds fixed bias and hostility towards the accused which would 

prevent them from properly weighing the evidence and 

rendering a true verdict.

Commonwealth v. Spotz, 896 A.2d 1191, 1222 (Pa. 2006). A prosecutor 

must be free to present her arguments with logical force and vigor, and 

advocacy is permitted so long as there is a reasonable basis in the record for 

the prosecutor’s remarks. See Commonwealth v. Chmiel, 30 A.3d 1111, 

1146 (Pa. 2011). Comments based on the evidence or reasonable 

inferences therefrom are not objectionable, nor are comments amounting to 

oratorical flair. Id.

The record reflects that the Commonwealth stated that the evidence 

would prove Appellant guilty. See N. T. Trial at 39. The prosecutor did not 

state that Appellant was guilty. The prosecutor then went on to outline the 

evidence that the Commonwealth planned to present, all of which was, in 
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fact, presented over the course of the trial. Consequently, the opening 

statement was based upon the evidence and reasonable inferences 

therefrom and was not objectionable. Thus, this claim lacks arguable merit. 

See Johnson, 966 A.2d at 533.

Finally, Appellant claims trial counsel was ineffective in coercing him to 

waive his spousal privilege against his wife testifying. In his pro se PCRA 

petition, Appellant averred that counsel informed him that Appellant needed 

to waive his spousal privilege so that Ms. Goble could be questioned 

regarding her decision to testify for the Commonwealth. See Appellant’s 

PCRA Petition at 10. Appellant argues that counsel was ineffective because 

this decision assisted the Commonwealth and not Appellant’s case. Id.

At the PCRA evidentiary hearing, trial counsel testified that originally 

his strategy had been to have Ms. Goble testify on behalf of Appellant and 

that spousal privilege should thus be waived. See N. T., 11/19/15, at 5-12. 

Counsel was surprised when, at trial, Ms. Goble testified on behalf of the 

Commonwealth instead. Id. at 8.

This claim lacks arguable merit, as spousal privilege does not apply in 

any criminal proceeding against either spouse for:

bodily injury or violence attempted, done or threatened upon the 

other, or upon the minor children of said husband and wife, or 

the minor children of either of them, or any minor child in their 

care or custody, or in the care or custody of either of them.

See 42 Pa.C.S. § 5913. Thus, because the instant matter was a criminal 

proceeding against Appellant committed upon the minor daughter of his 
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wife, in their custody, the waiver was a nullity. This claim lacks arguable 

merit. See Johnson, 966 A.2d at 533.

Finally, Appellant raised a number of layered claims of ineffectiveness, 

alleging that PCRA counsel was ineffective for failure to pursue or investigate 

certain of Appellant’s claims. Additionally Appellant argues, in his response 

to Mr. Kelly’s Turner/Finley brief, that Mr. Kelly himself was ineffective. 

Appellant’s Reply Brief at 1-6. However, claims of PCRA counsel 

ineffectiveness cannot be raised for the first time after a notice of appeal has 

been taken from the underlying PCRA matter. Commonwealth v. Ford, 44 

A.3d 1190, 1201 (Pa. Super. Ct. 2012); see also Pitts, 981 A.2d at 880 

n.4. 

Accordingly, we discern no error in the PCRA court’s decision to 

dismiss Appellant’s petition following an evidentiary hearing. Appellant’s 

claims are without merit, and he is entitled to no relief. Moreover, counsel 

has complied with the requirements of Turner/Finley, and his petition to 

withdraw is granted.

Application to withdraw granted; order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2016