Com. v. Nguyen, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRI THANH NGUYEN
Appellant No. 811 MDA 2015
Appeal from the PCRA Order April 29, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002261-2008
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 18, 2016
Appellant, Tri Thanh Nguyen, appeals from the April 29, 2015 order,
denying his first petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
A prior panel of this Court summarized the relevant procedural history
of this case as follows.
On April 15, 2010, [following a bench trial,
Appellant was found] guilty of various charges
stemming from the sexual assault of minors.
Following trial, [trial counsel] was permitted to
withdraw as counsel, and [current counsel] was
appointed in his place. On March 1, 2011,
[Appellant] was found to be a Sexually Violent
Predator and was also sentenced [to an aggregate
term of 406 to 888 months of imprisonment]. On
March 14, 2011, [Appellant] filed a post-sentence
motion alleging the ineffective assistance of trial
counsel. Due to a lengthy investigation by
[Appellant], the matter did not proceed to an
*Former Justice specially assigned to the Superior Court.
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evidentiary hearing until June 30, 2011. On July 18,
201[1], the Clerk of Courts entered an order
deeming the post-sentence motion denied by
operation of law due to the passage of 120 [days]
since the filing of the post-sentence motion pursuant
to Pa.R.Crim.P. 720.
Following the denial of the post[-]sentence
motion, [Appellant] made the decision to [forgo] an
appeal and, instead, filed a [timely PCRA petition] on
February 29, 2012. An evidentiary hearing was held
on May 7, 2012. At the hearing, the Commonwealth
challenged the Court’s jurisdiction to hear the matter
due to the fact that ineffective assistance of counsel
had been raised in the post[-]sentence motion, the
denial of which was not appealed, and therefore had
been waived. The [PCRA] court ordered briefs on
the issue. An Order dismissing the [PCRA petition]
was entered on December 18, 2012, along with an
accompanying Opinion explaining the [PCRA court’s]
decision.
Commonwealth v. Nguyen, 87 A.3d 372 (Pa. Super. 2013) (unpublished
memorandum at 1-2), appeal denied, 89 A.3d 661 (Pa. 2014), quoting PCRA
Court Opinion, 3/11/13, at 1. On September 4, 2013, this Court reversed
the PCRA court’s order and remanded for further proceedings, concluding
that Appellant did not waive his ineffective assistance of counsel claims. Id.
at 5-6. Our Supreme Court denied the Commonwealth’s petition for
allowance of appeal on April 4, 2014. See id.
On remand, Appellant filed an amended PCRA petition on October 28,
2014. The Commonwealth filed its answer on November 5, 2014. On April
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29, 2015, the PCRA court entered an order denying Appellant’s PCRA
petition. On May 11, 2015, Appellant filed a timely notice of appeal. 1
On appeal, Appellant raises the following issue for our review.
1. Did the [PCRA] court err in denying Appellant’s
request for relief under the [PCRA]?
Appellant’s Brief at 4.
We begin by noting our well-settled standard of review. “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.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
____________________________________________
1
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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The Sixth Amendment to the Federal Constitution provides, in relevant
part, “[i]n all criminal prosecutions, the accused shall enjoy the right … to
have the Assistance of Counsel for his defence.”2 U.S. Const. amend. VI.
The Supreme Court has long held that the Counsel Clause includes the right
to the effective assistance of counsel. See generally Strickland v.
Washington, 466 U.S. 668, 686 (1984); Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987).
In analyzing claims of ineffective assistance of counsel, “[c]ounsel is
presumed effective, and [appellant] bears the burden of proving otherwise.”
Fears, supra at 804 (brackets in original; citation omitted). To prevail on
any claim of ineffective assistance of counsel, a PCRA petitioner must allege
and prove “(1) the underlying legal claim was of arguable merit; (2) counsel
had no reasonable strategic basis for his action or inaction; and (3) the
petitioner was prejudiced—that is, but for counsel’s deficient stewardship,
there is a reasonable likelihood the outcome of the proceedings would have
been different.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence
fails to satisfy any one of these prongs.” Commonwealth v. Elliott, 80
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2
Likewise, Article I, Section 9 of the Pennsylvania Constitution states in
relevant part, “[i]n all criminal prosecutions the accused hath a right to be
heard by himself and his counsel ….” Pa. Const. art. I, § 9. Our Supreme
Court has held that the Pennsylvania Constitution does not provide greater
protection than the Sixth Amendment. Pierce, supra at 976.
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A.3d 415, 427 (Pa. 2013) (citation omitted), cert. denied, Elliott v.
Pennsylvania, 135 S. Ct. 50 (2014).
Although presented as one issue, Appellant raises two ineffective
assistance of counsel claims in this appeal. In his first claim, Appellant avers
trial counsel was ineffective for not calling D.N., a man who lived in
Appellant’s home and admitted to molesting two of the victims in this case.
Appellant’s Brief at 17. This Court has previously noted that a PCRA
petitioner has a heavy burden when alleging that counsel failed to call a
certain witness at trial.
[I]n the particular context of the alleged failure to
call witnesses, counsel will not be deemed ineffective
unless the PCRA petitioner demonstrates: (1) the
witness existed; (2) the witness was available; (3)
counsel knew of, or should have known of the
existence of the witness; (4) the witness was willing
to testify for the defense; and (5) the absence of the
testimony was so prejudicial to petitioner to have
denied him or her a fair trial.
Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2012) (citation
omitted).
[After] … establish[ing] deficient performance,
[a defendant] must also show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability
is a probability sufficient to undermine confidence in
the outcome. When a defendant challenges a
conviction, the question is whether there is a
reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt
respecting guilt.
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Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (per curiam). “[T]he
test for prejudice in the ineffectiveness context is more exacting than the
test for harmless error, and the burden of proof is on the defendant, not the
Commonwealth.” Spotz, supra at 315. “[T]he Pierce prejudice standard
[] requires the defendant to show that counsel’s conduct had an actual
adverse effect on the outcome of the proceedings.” Id. “[N]ot every error
by counsel can or will result in a constitutional violation of a defendant’s
Sixth Amendment right to counsel.” Id.
After careful review, we conclude Appellant has failed to satisfy the
last two prongs articulated in Miner. Appellant has not made any showing
that D.N. was available and willing to testify for the defense. Appellant
instead posits that trial counsel should have subpoenaed D.N. and let him
invoke the Self-Incrimination Clause of the Fifth Amendment on the stand,
or negotiate immunity for D.N. with the Commonwealth. Appellant’s Brief at
24. This concedes that D.N. was unavailable to testify for the defense if trial
counsel was required to subpoena him for trial. See generally
Commonwealth v. Mollett, 5 A.3d 291, 308 (Pa. Super. 2010) (stating,
“[a] witness who asserts his Fifth Amendment right is unavailable if the trial
court finds that the witness’s concern with incriminating himself is valid[]”),
appeal denied, 14 A.3d 826 (Pa. 2011).
Furthermore, Appellant does not explain how D.N. invoking the Fifth
Amendment on the stand would give rise to “a reasonable probability that …
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the factfinder would have had a reasonable doubt respecting guilt.” Hinton,
supra. D.N.’s hypothetical invocation of the Self-Incrimination Clause would
not have produced any new facts for the jury to consider in conducting its
deliberations in this case. Based on these considerations, we conclude
Appellant’s first claim on appeal lacks arguable merit, and Appellant has
failed to show prejudice. See Miner, supra.In his second claim, Appellant avers that trial counsel was ineffective
for not filing a taint or competency motion under Pennsylvania Rule of
Evidence 601 for witnesses L.U., who was 15 years old at the time of trial,
and for R.M., who was 9 years old at the time of trial. Appellant’s Brief at
31-34. The Commonwealth counters that both claims lack arguable merit as
Appellant has not shown that either child was incompetent or that her
testimony was tainted. Commonwealth’s Brief at 10-19. We address each
witness in turn.
As noted above, L.U. was 15 years old at the time of trial. Therefore,
as a matter of law, L.U.’s competency was established. See
Commonwealth v. Moore, 980 A.2d 647, 652 (Pa. Super. 2009) (stating,
“when a witness is under the age of fourteen, the trial court must hold a
competency hearing[]”), appeal denied, 991 A.2d 311 (Pa. 2010). For the
same reason, the trial court was not required to hold a taint hearing. See
Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011) (stating that
because witnesses were “fourteen and fifteen at the time of the taint hearing
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… the issue of taint was totally irrelevant as a matter of law[]”); accord
Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal
denied, 912 A.2d 1291 (Pa. 2006).
However, R.M. was 9 years old at the time of trial. Therefore, R.M.’s
competency “must be independently established.” Commonwealth v.
Harvey, 812 A.2d 1190, 1199 (Pa. 2002), abrogated on other grounds,
Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013).
In order to be found competent, the minor must
possess: (1) the capacity to communicate, including
both an ability to understand questions and to frame
and express intelligent answers; (2) the mental
capacity to observe the occurrence itself and the
capacity to remember the matter about which she
has been called to testify; and (3) a consciousness of
the duty to speak the truth.
Id.In Harvey, the defendant was convicted of first-degree murder, and
he challenged the determination that a 13 year old witness was competent
to testify at trial. Id. at 1193, 1199. Although our Supreme Court held that
the trial court erred in not conducting a separate colloquy on competency, it
concluded the error was harmless.
In the instant case, the record clearly indicates
that [the victim] was able to understand the
questions asked of her by counsel and was able to
frame and express intelligent answers to those
questions regarding the details of the shooting.
However, as the trial court acknowledged, given that
[the victim] was only thirteen years old at the time
of trial, the court did err in failing to conduct a
separate colloquy in order to determine [the victim’s]
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understanding of the oath that she took to tell the
truth. Nevertheless, we agree with the trial court
that because it had the opportunity to observe [the
victim’s] demeanor and was the sole determiner of
her truthfulness, the fact that the trial court did not
engage in a distinct colloquy regarding the
truthfulness aspects of her competency did not
prejudice Appellant.
Id. at 1199.
In this case, the PCRA court concluded that Appellant had not shown
prejudice within the meaning of Strickland and Pierce based on the
following.
I don't think there’s any - clearly no prejudice here
because the fact finder in this case was Judge
Herman who obviously knew what the standard for
competency is. He was able to view the witness
well, observed how she responded to the questions,
and my review of the hard transcript I see nothing to
say that she couldn’t observe what she said she saw,
that she had any trouble articulating what she said
she saw or that she had [any trouble with] an
appreciation for the truth telling process, so I just
don’t think especially in a case with a bench trial that
I see any prejudice because I see nothing from the
record to say that she was not competent to testify,
so I will - I don’t find that he was ineffective for not
asking for a competency hearing because I don't find
that [Appellant] was prejudiced in any way.
N.T., 4/22/15, at 24.
After careful review of the certified record, we conclude Appellant is
not entitled to relief. Our Supreme Court has explained a defendant’s
burden to show prejudice in the following terms.
Relating to the prejudice prong of the
ineffectiveness test, the PCRA petitioner must
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demonstrate that there is a reasonable probability
that, but for counsel’s error or omission, the result of
the proceeding would have been different.
Particularly relevant herein, it is well-settled that 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 Strickland test, the court may
proceed to that element first.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). As the PCRA
court noted, this was a bench trial, and the trial court was well aware of the
law on competency and “the trial court … had the opportunity to observe
[R.M.]’s demeanor and was the sole determiner of her truthfulness[.]”
Harvey, supra. In this instance, we find our Supreme Court’s decision in
Harvey controlling and conclude Appellant is not entitled to relief on this
issue.
As for the issue of taint, Appellant argues on appeal that two items in
the record point to evidence of taint. First, Appellant reports that R.M. was
subjected to four interviews by Children and Youth Services (CYS) on
January 5, 2007, January 8, 2007, February 19, 2007, and February 15,
2008, at the conclusion of which no evidence of sexual abuse was
discovered. Appellant’s Brief at 36-37. According to Appellant, “[i]t wasn’t
until October of 2008 that reports of sexual abuse pertaining to [Appellant]
began to arise.” Id. at 37. Appellant also alleges that R.M.’s foster parents
“undoubtedly conducted countless interrogations of the children previously
living in [Appellant]’s home.” Id. at 37. Appellant continues that “the foster
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parents had an incentive to interrogate and encourage the victims to explain
that Appellant was molesting them because if the victims told authorities
that Appellant was molesting them, their meal ticket was punched in that
they would be guaranteed the financial assistance they received to support
the children.” Id. at 38.
We note that a motion for a taint hearing is governed by the following
legal parameters.
In order for the court to investigate the issue of taint
at a competency hearing, however, the moving party
must come forward with evidence of taint. Once the
moving party comes forward with some evidence of
taint, the court must expand the scope of the
competency hearing to investigate that specific
question. The party alleging taint bears the burden
of production of some evidence of taint as well as the
ultimate burden of persuasion to show taint by clear
and convincing evidence after any hearing on the
matter. When determining whether a defendant has
presented some evidence of taint, the court must
consider the totality of the circumstances
surrounding the child’s allegations. Some of the
factors that are relevant in this analysis are: (1) the
age of the child; (2) the existence of a motive hostile
to the defendant on the part of the child’s primary
custodian; (3) the possibility that the child’s primary
custodian is unusually likely to read abuse into
normal interaction; (4) whether the child was
subjected to repeated interviews by various adults in
positions of authority; (5) whether an interested
adult was present during the course of any
interviews; and (6) the existence of independent
evidence regarding the interview techniques
employed.
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Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006) (internal
quotation marks and citations omitted), appeal denied, 912 A.2d 1291 (Pa.
2007).
The PCRA court rejected Appellant’s taint issue because it had
reviewed the interviews, and it “just [did not] see anything unduly
suggestive during the interviews in any way. They [were] very open
end[ed] questions … [and no] suggestion of answers.” N.T., 4/16/15, at 24-
25. The PCRA court continued that “[t]here’s nothing in the Children’s
Resource Center to indicate that they were being suggested the answers.”
Id. at 25.
After careful review of the certified record, we conclude Appellant is
not entitled to relief on this issue. As noted above, in order for a taint
hearing to be warranted, the burden would have been on Appellant to come
forward with evidence of taint. Judd, supra. There appears to be no
dispute in this case that there were multiple interviews conducted of the
children. However, multiple interviews are only one factor for a trial court to
consider. See id. Our cases unequivocally require us to review a taint
motion utilizing a totality of the circumstances test. See id.As to the foster mothers’ alleged financial motive, Appellant’s brief
only refers to testimony by Kristin Nicklas, Esquire (Attorney Nicklas), an
attorney who reviewed certain CYS records for Appellant, that the foster
mothers would call in and ask for more children to be placed with them and
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requested the financial assistance that came with such placement.
Appellant’s Brief at 37-38. Attorney Nicklas testified that the foster mothers
asked for the placement of more children and the subsidies for the foster
children. N.T., 5/7/12, at 26. According to Attorney Nicklas, the foster
mothers’ requests were refused. Id.Appellant’s argument is that the foster mothers had a financial
incentive “to interrogate and encourage the victims to explain that Appellant
was molesting them” and this is evidence of taint. Appellant’s Brief at 38.
However, Attorney Nicklas’s testimony merely established that the foster
mothers asked for additional foster children and the subsidies that would
come with said additional children. Without asserting any evidentiary nexus
between the foster mothers’ requests and their alleged financial motive,
Appellant attempts to impute monetary gain as the specific reason for their
requests to the agency. In our view, Attorney Nicklas’s testimony does not
establish that the foster mothers’ ever conducted any interrogations of any
of the children. Accordingly, based on the totality of the circumstances
presented in this case, we conclude Appellant would not have met his
burden to warrant a taint hearing. It is axiomatic that counsel cannot be
ineffective for failing to raise a meritless issue. Fears, supra at 804.
Therefore, we conclude that Appellant has failed to carry his burden to show
that this claim has arguable merit.
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Based on the foregoing, we conclude all of Appellant’s issues on appeal
are devoid of merit. Accordingly, the PCRA court’s April 29, 2015 order is
affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2016
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