J-S79027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JAMES LORRAINE SCOTT

                         Appellant                     No. 111 EDA 2016


        Appeal from the Judgment of Sentence November 13, 2015
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0000027-2015


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                         FILED JANUARY 25, 2017

      James Lorraine Scott appeals from the judgment of sentence entered on

November 13, 2015 by the Chester County Court of Common Pleas. We affirm

the judgment of sentence and dismiss Scott’s ineffective assistance of counsel

claims without prejudice.

      The trial court summarized the relevant procedural history of this matter

as follows:

             On July 20, 2015, a bench trial was held and at the
         conclusion, this Court found [Scott] guilty of Indecent Assault
         (18 Pa.C.S.A. §3126(a)(1)). At the bench trial [Scott] was
         represented by Anthony F. List, Esquire. [Scott] retained
         current counsel, Carson B. Morris, Esquire, on August 14,
         2015. On November 13, 2015, immediately prior to
         sentencing, [Scott] made an oral Motion for Extraordinary
         Relief pursuant to Pa.R.Crim.P. 704(B) contending that a new
         trial was necessary due to newly discovered evidence that
         [Scott] suffers from Asperger’s Syndrome and that his trial
         counsel was ineffective when he failed to present evidence of
         [Scott’s] condition and failed to file a Motion to Suppress
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         [Scott’s] statement to local law enforcement. (N.T.,
         11/13/15, p. 4, ll. 4-18). The oral Motion for Extraordinary
         Relief was denied and [Scott] was sentenced to 5-23 months
         of incarceration and ordered to register as a sex offender for
         15 years pursuant to 42 Pa.C.S.A. §9799.14 and
         §9799.15(a)(1).

            On November 18, 2015, [Scott] filed a Bail Motion along
         with a Post-Sentence Motion for a New Trial. In his Motions
         for a New Trial, [Scott] again raised a Post-Conviction Relief
         Act (“PCRA”) claim of ineffective assistance of counsel as
         “extraordinary” and within the prerequisites set forth in
         Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).
         [Scott’s] Post-Sentence Motion for New Trial was denied on
         December 2, 2015 and his Motion for Bail was granted on
         December 3, 2015.

            On December 31, 2015, [Scott] appealed our judgment of
         sentence and our denial of his Post-Sentence Motion for New
         Trial. Our Rule 1925(b) Order was docketed on January 4,
         2016 and [Scott’s] Concise Statement was filed timely on
         January 21, 2016.

Rule 1925(a) Opinion, 2/29/16, at 1-2 (“1925(a) Op.”).

      Scott raises the following issues on appeal:

         DID THE LOWER COURT ERR IN RULING THAT APPELLANT’S
         CONVICTION WAS NOT THE RESULT OF THE INEFFECTIVE
         ASSISTANCE OF HIS TRIAL COUNSEL WHEN COUNSEL
         FAILED TO MOVE TO SUPPRESS THE STATEMENT APPELLANT
         GAVE TO LAW ENFORCEMENT WHEN THIS STATEMENT WAS
         INVOLUNTARILY GIVEN AND OTHERWISE INADMISSIBLE
         DUE TO APPELLANT’S ASPERGER’S SYNDROME?

         DID THE LOWER COURT ERR IN DENYING APPELLANT'S
         CLAIM THAT SHOULD TRIAL COUNSEL NOT BE DEEMED
         INEFFECTIVE FOR FAILING TO REALIZE HIS CLIENT
         SUFFERED FROM ASPERGER’S SYNDROME, UNDERSIGNED
         COUNSEL’S DISCOVERY OF APPELLANT’S CONDITION
         CONSTITUTED AFTER-DISCOVERED EVIDENCE WARRANTING
         THE GRANT OF A NEW TRIAL?

Scott’s Br. at 4.



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      Scott argues that trial counsel was ineffective on two grounds: 1) for

failing to move to suppress the statement Scott gave to police in light of Scott’s

diagnosis of Asperger’s Syndrome; and 2) to the extent counsel was unaware

that Scott had Asperger’s Syndrome, for failing to investigate. Scott’s Br. at

13-14. Before addressing the merits of Scott’s ineffectiveness claims, we first

address whether his claims are properly before this Court.

      In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), “[o]ur Supreme

Court determined that, absent certain circumstances, ‘claims of ineffective

assistance of counsel are to be deferred to [Post Conviction Relief Act] review;

trial courts should not entertain claims of ineffectiveness upon post-verdict

motions; and such claims should not be reviewed upon direct appeal.’”

Commonwealth v. Harris, 114 A.3d 1, 5 (Pa.Super. 2015) (quoting Holmes,

79 A.3d at 576); see also Commonwealth v. Grant, 813 A.2d 726, 738 (Pa.

2002) (“[A]s a general rule, a petitioner should wait to raise claims of

ineffective assistance of trial counsel until collateral review.”). The Holmes

Court recognized two exceptions to this general rule:

         We recognize two exceptions [to the general rule] both
         falling within the discretion of the trial judge. First, we
         appreciate that there may be extraordinary circumstances
         where a discrete claim (or claims) of trial counsel
         ineffectiveness is apparent from the record and meritorious
         to the extent that immediate consideration best serves the
         interests of justice; and we hold that trial courts retain their
         discretion to entertain such claims.

         Second, with respect to other cases and claims . . . where
         the defendant seeks to litigate multiple or prolix claims of
         counsel ineffectiveness, including non-record-based claims,


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        on post-verdict motions and direct appeal, we repose
        discretion in the trial courts to entertain such claims, but only
        if (1) there is good cause shown,1 and (2) the unitary review
        so indulged is preceded by the defendant’s knowing and
        express waiver of his entitlement to seek PCRA review from
        his conviction and sentence, including an express recognition
        that the waiver subjects further collateral review to the time
        and serial petition restrictions of the PCRA.2 In other words,
        we adopt a paradigm whereby unitary review may be
        available in such cases only to the extent that it advances
        (and exhausts) PCRA review in time; unlike the so-called
        [Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003)]
        exception, unitary review would not be made available as an
        accelerated, extra round of collateral attack as of right. This
        exception follows from the suggestions of prior Court
        majorities respecting review of prolix claims, if accompanied
        by a waiver of PCRA review.
           1
              ...[I]n short sentence cases the trial court’s
           assessment of good cause should pay particular
           attention to the length of the sentence imposed and
           the effect the length of the sentence will have on the
           defendant’s realistic prospect to be able to avail
           himself of collateral review under the PCRA.
           2
              Unitary review describes the defendant’s ability to
           pursue both preserved direct review claims and
           collateral claims of trial counsel ineffectiveness on
           post-sentence motions and direct appeal, and could
           aptly describe both exceptions we recognize today.
           However, for purposes of this appeal, we intend the
           term only to describe the second exception, i.e., that
           hybrid review which would encompass full-blown
           litigation of collateral claims (including non-record-
           based claims).

Holmes, 79 A.3d at 563–64 (some citations omitted).




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       The trial court did not address whether extraordinary circumstances

warranting immediate consideration of Scott’s ineffectiveness claims existed,1

nor did it address whether unitary review was appropriate.           Based on our

review of the record, we conclude that extraordinary circumstances do not exist

here. Thus, the first exception to the general rule deferring such claims to

PCRA review does not apply.           Scott also argues that this case is a “short

sentence” case warranting unitary review. Scott’s Br. at 1-2. Scott, however,

did not knowingly and expressly waive his right to PCRA review.2 Thus, the

unitary review exception does not apply.

       Accordingly, the trial court should not have considered the merits of the

ineffectiveness claims raised in Scott’s post-sentence motion. Therefore, we

dismiss Scott’s claims of ineffectiveness of counsel without prejudice to his right

to raise these claims in a timely filed PCRA petition. See Commonwealth v.

Burno, 94 A.3d 956, 971 (Pa. 2014) (concluding that appropriate disposition of

collateral claims for ineffectiveness of counsel improperly entertained by trial

court is dismissal of claims without prejudice to appellant’s right to pursue them

under PCRA).



____________________________________________


       1
           In fact, the trial court found that Scott’s ineffectiveness claims lacked
merit.
       2
           We also note that Scott is currently on bail pending the instant
appeal.



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      Scott next argues that the trial court erred in denying his motion for a

new trial based on a claim of after-discovered evidence, where the alleged

after-discovered evidence is Scott’s diagnosis of Asperger’s Syndrome.

         A trial court should grant a motion for new trial on the
         ground of after-discovered evidence where producible and
         admissible evidence discovered after trial (1) could not have
         been obtained prior to the end of trial with the exercise of
         reasonable diligence; (2) is not merely corroborative or
         cumulative evidence; (3) is not merely impeachment
         evidence; and (4) is of such a nature that its use will likely
         result in a different verdict on retrial. In reviewing the trial
         court’s determination in this regard, this Court affirms unless
         the determination constitutes an abuse of discretion.

Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013) (internal citations

omitted).

      The trial court addressed this claim in its opinion and properly concluded

that Scott was not entitled to a new trial. As the trial court explained:

            [Scott] cannot meet his burden as he fails to meet the
         very first requirement, that the evidence claimed, [Scott’s]
         Asperger’s Syndrome, is newly discovered evidence. By his
         own admission, [Scott] was aware of his mental, emotional,
         and behavioral problems as a child when he attended a
         special educational school and was aware of the specific
         diagnoses of Asperger’s Syndrome after being diagnosed by
         a physician prior to obtaining his massage therapy license.
         Specifically, [Scott] requested, and was granted, special
         accommodations in taking his massage licensure test. (N.T.,
         11/13/15, p. 5, ll. 18 – p. 6, l. 3). [Scott] was aware of his
         conditions, its limitations, and exercised his right to
         accommodations long before his interview with law
         enforcement. As a result, there is no reasonable explanation,
         and [Scott] has not offered one, as to why [Scott] could not
         have produced the evidence of his diagnosis at or before his
         bench trial. Commonwealth v. Jones, 402 A.2d 1065, 1066
         (Pa. Super. 1979). Additionally, our courts have held that a
         defendant has a duty to bring forth any relevant evidence on


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        his behalf. Commonwealth y. Johnson, 323 A.2d 295, 296
        (Pa.Super. 1974). Thus, [Scott] cannot now claim that his
        diagnosis is “newly discovered” evidence warranting a new
        trial.

1925(a) Op. at 5.

     Judgment of sentence affirmed. Ineffective assistance of counsel claims

dismissed without prejudice. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2017




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