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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(unpublished memorandum).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 brief2 and 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 fact-

finder,     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

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